Dittmar

[1] (after stating the facts as above). Upon the assignment that there was no evidence to sustain the judgment, the question arises; To what extent may the decision of the court below be reviewed here upon the writ of error ? The statute of March 3, 1865 ( 13 Stat. 501 ; Rev. Stat. §§ 649, 700), provides in substance that the finding of the court upon the facts, in a case where an action is submitted to the court by a written consent to waive a jury, shall have the same effect as the verdict of a jury, and that the rulings of the court in the progress of the trial of the cause, when excepted to at the time, may be reviewed upon writ of error or upon appeal, provided the rulings be duly presented by bill of exceptions and that, when the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment. Under this statute, the general finding of the court in such a case is not subject to review in an appellate court, except in cases where there is no evidence to sustain the finding, and then only when that question has been expressly presented to the trial court and an exception has been saved to the ruling thereon.…