172
DDEBAL REPORTER,
voL 53.
act," the reference is to1;ll.ec.lasses of cases enumerated in the first cla1,1$e of section 6; and, unless a given be brought within someone or more of the classes therein defined, the judgment or c,lecree of the supreme court of the territory cannot be reviewed by a circuit court ·of appeals. Unless this be the construction given to the we would have, following the contention of counsel for theplainti:ff in error, the absurd result that the judgments of the supreme courts of the territories could be appealed to the circuit courts of appeals in all cases wherein the amount in controversy does not exceed .'1,000, but in all cases wherein the amount in controversy ex· sum no appeal could be taken. No possible reason can be aq,v,anced in support of the proposition that congress intended to erearright of appeal applicable to cases involving small amounts, and to 1113J:lY .the right in cases involving large sums. The absurdity of tM,result is the strongest possible argument a,gainst the correctness a construction qf the statute; for, as is said in Lau Ow Bew v. U. S. 47--59, Sup. Ct. Rep. 517, "nothing is better setthat. statutes should receive a sensible construction, such alit;will, effectuate the legislative intention, and, if possible, so as to awi4;jan unjust ()r absurd result." We reaffirm, therefore, the conclJIlrio;1jl rel,Whed in of Mining Co" v. Ripley, supra, that the jurisdiction of this court over.,the judgments and decrees of th,e supreme court of the territory of New Mexico is strictly limited to, C8,$es coming withhl some one or more' of the classes enumerated in the first clause of section 6 of the act of March 3, 1891, and in rato which it is expressly declared that the judgment of the circuit courts of appeals therein is final. does n()t appear that the case at bar comes within anyone of the enumerated classes, it follows that the writ of error be dismissed, at cost of plaintiff in alTor, for want of jurisdie-
tiQn.
MERRILL T. FLOYD. (Olrcult Court of Appeals, Fll"Bt Olreult. November 10. 1892.) No. 23. LAI'!'B.u,-TRIALS NOT AOCORDING TO COMMON LAW. When a case is tried in a tederal court otherwise than according to the strict , ClOurseot the common law, the circuit court ot appeals has nojurisdiction as to exqeptlops taken at the trial, or as to the efI<:jct of the facts found, except as by Rev. St. §§ 649, 700, in cases where a jU1'Y is waived. ... SAMB':"WAIVER OF JURY.
But to authorize a review under these sections the walverof a jury trial must be unconditional, and by a writing which sets forth the whole agreement; anq hence, where the stipulation is merely that the cllSe sha.ll be marked, "Jurv waived tentatively, "there can be no such ,review. although the parties have acted on the agree"ment, and thus rendered it
In Error to the Circuit Court of the United States for the District of MasSachusetts. 'Action by Byron B. Floyd' against Ezra F. Merrill for fraudulent resentations. Tri.li.l to the court, which filed its "findings of fact and verdict." A motion to set aside the "verdict" was thereafter overruled. i I.
,
MERRILL
173
Defendant brought error, and a motion to dismiss the writ of error was denied. See 5 U. S. App. - , 2 C. C. A. 58, 50 Fed. Rep. 849, where a full statement of the facts will be found. The case is now heard on the merits. Affirmed. William A. Macleod and Robert D. Trask, for plaintiff in error. Benjamin F. Butler and T. Henry Pearse, for defendant in error. Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge. PUTNAM, Circuit Judge. No question can be raised in this court on the pleadings in the case at bar, because there is no assignment of errors relating thereto; ahd we do not understand that plaintiff in error calls our rttention to any alleged insufficiencies in thlldeclaration, or intends to do so. It has been decided too often to need reiteration that an appellate court cannot, on error, according to the course of the common law, a motion for a new trial, based on the weight or immffidency of evidence, or any exceptions to the action 'of the COllrt below denying stich motion. Therefore we have no jurisdiction over the first and second exceptions, nor over the first, 'second,and third assignments of errors, and no occasion to open the record so far as it recites the proofs or the proceedings at the trial in the circuit court. This, of course, does not include questions as to the effect of findings of fact. But when a case is tried in the circuit court otherwise than according to the strict .course of common law, we have no jurisdiction as to exceptions taken at the trial, or as to the effect of the facts found, except under Rev. St. §§ 649, 700. Here we do not find the waiver these 8ections require, which is an absolute one, while the agreement filed was merely "tentative," or in effect conditional. The fact that it was apparently afterwll,rds acted on, and thus by the conduct of the parties apparently relieved, so far as concerns them, of its "tentative" feature, does not aid the plaintiff in error. The statute demands precision, and intends that the record shall leave no doubt as to the exact nature of the trial Therefore it requires that the agreement of waiver, and the whole of it, shall be in writing, and does not permit it to be supplemented in any part by parol or by acts in pais. It is intended for the protection and guidance of the court, as well as of the parties, and it cannot be waived by the latter. The provisions of the statute are simple, and can easily be complied with in Buchmanner as to leave behind no uncertainty, and. we must enforce them according to their letter. While, for the reasons stated, we have no jurisdiction over some of the questions raised, we have jurisdiction over the case, as was decided by this court in this case. June 30, 1892, (5 U. ·S. App. - , 2 C. C. A. 58, 50 Fed. Rep. 849,) and the judgment of the circuit court is affirmed.
171 ,;1',' ,Cl",
GRAY
v;HAVEMEYER etal.
(tJltclflt"COtltt of Appeals; Elkhth Circuit. October 81,1892.) No.188. t. TffiL " PAnTIES-JOINT , LIENS-PRIORI-
a to a mortgagee and certain mechanic'S' lienors were madl:l parties, the court directed a sale of the property and an application of the proceeds to the payment, first of costs. next of the mortgages in their order, and next of the mechanics' liens; and decreed the ,atn0unt due each lienor, and the equality of all the ,mechanics'Jiens in point oftiine, I:(eld, thafth'e decree was:not'joint lis respects the mechanics' liene: to prevent an ,appeal by: one'alone, but WAS several as to,each.
2. ',$AME,,:","NECESSA'RV )\lEGHANICS' LIENORS. But, where one of the1Jlephanics' Uenors appealed. seeking to have his lien given priority, the otlij:lI"s were necessary parties, since the court could not ,: subordinate their Uensrtohis in their absence. ' 11 SAME-OWNER Oll' PROPEltTY-PROVINCE OF OOURT-EsTOPPEL.
, lieJ;lQrbeinQ' a subcontr,actof, and seeking by his appeal to have' his lien adjudged prior to the thortgap;es, as well as to the other me'chani{is' liens. the owner of: the land was also a necessary party to the appeal, sincehewQuJd bEl for a balance due on the mortgage notes, but not ,oDthe am,ount ,of the subcontractors' lien: and the court could assUttle;the possible the land to sell for enough to meet both lien and mortgages, and the consequent injury to the owner. since the decree appealed' , be injuriousto,the subcolltraotor only.by assumiug the same posSIbility. , , 111 a suit to foreClose a mortgagll givenbn realty in Nebraska, and executed' by a resident of that it waae.-rpr f,or the court to ,allow attoran item of uI!'dllr a provision of the mortgage for such an neys' f,ees, , allowance in case of 'since the supreme court of Nebraska had determined that sueh a'prov1'8ion,in a mortgage was invalid. Bendey v. TownCt. Eep. 109 U.S. 665, and Dodge v. Tulleys, 12 Sup. Ct. Rep. ,728. .: '; U. S. 451,. ' ',', ·i.l ' I'" .'.<,'
4. FEDERAL 'Cot1RTs-FoLLOWING STATlll PRACTICE-COSTS OF FORECLOSURE.
Appeiu 'fi:oom theCireillt Court of the United States for the Dis· trict of Nebraska. In EqUity. Bin to foreclose a, mortgage, brought by Sarah A. HavemeyeragainstJ. R.· Van Closter, mortgagor;O. F. Davis Company, subsequent mortgagee; Fred W. Gray, mechanic's lienor; and other lienors. Decree. :for "complablant. Defendant· Qray appeals, causing citation, to issu,e, only tocoJ1lplainant, Havemeyer, and defendant O. F. Davis, Company. Modified and affirmed. John C" Wharton ,arid William Baird, for appellant. John L. KennedY,ltnd,M. L. Learrted,for'appellees. Before CALDWELL a.nd SAN:sORN, Circuit Judges, and SHI· RAS, DistriAt Judge. SHIRAS, District Judge. On tM 6th day of December, J. H. Van Closter executed and delivered to Sarah A. Havemeyer a mortgage on certain lots in the city of Omaha, Neb., to secure the payment of a promissory note for the sum of $2,500. The mortgage was recorded in the office of the register of deeds of Douglas county, Neb., on the 17th day of January, 1890. On the 6th of December,