PJ{ESS V. DAVIS.
267
a part of the lode on which its location rested, even though the apex of such lode in the course of its strike to the southwest had eventually crossed into the Aliunde territory, and had been there discovered and located upon by the proprietor of the latter claim. We intended to overrule that contention, and we think we did do so with sufficient certainty in our previous decision. It is true that we made some reference to the vein having "forked 88 it entered the disputed territory," but in using that expression we merely referred to a theory which was stated in the original brief filed by counsel for the plaintiff in error. In so far as the application of the rule of law which we announced is concerned, it is obviously immaterial whether the lode became divided as it entered the die.puted territory or did not so divide. In either event, we think it follows that, as the Colorado Central claim had been laid rather obliquely to the general course of the outcrop, the owners of that claim lost the vein when they lost the outcrop. This view was distinctly enunciated in our previous decision, the authorities were cited on which we predicated our opiuion, and we find nothing in the petition for a rehearing which is calculated to change our views. In conclusion, it may not be out of place to remark that the question whether a locator on the dip of a vein may be ousted by a subsequent locator on the apex, 88Suming both claims to be laid side by side and "along the vein or lode," does not seem to be presented by the record now before us, and we· have expressed no opinion on that point. It follows from what has been said that no sufficient cause has been shown for further argument, and the petition for a rehearing is accordingly denied. PRESS v. DAVIS at al. (Circuit Court of Appeals, SeVenth Circuit. February 18, 1893.)
No. 75. APPEAL-REVIEW-WAIVER Oll' OB,JECTION.
Rev. St. f 700, which declares that, when there is a epactal finding in a case in which a jury has been waived, the review of the judgment "may extend to the determination of the suffi.c1ency of the facts found to support the judgment," does not authorize a reversal of a judgment for alleged errors in the findings, Where no objection was taken or exception reserved in the trial court.
In ElTor to the Circuit Court of the United States for the Northern District of lllinois. Assumpsit by Isaac Davis and others against Whiting G. Press. Plaintiffs· obtained judgment. Defendant brings error. Affirmed. Lewis H. Bisbee, for plaintiff in elTor. John C. Black, for defendants in error. Before WOODS, Circuit Judge, and BUlrn' and JENK.INS, Diamet Judges. PER CURIAM. In this case the right of trial by jury wall waived, and upon a special finding of facts the court gave judg-
268
VEDERAL REPORTER,
vol. 54.
ment for the plaintiffs in the sum of $2,890.25. The motion for a ,tJ:;iaJ, which seems to have been made and overruled, is not in the rec,()rd. ", The errors assigned are directed to the question whether the judgment is supported by the facts found. The particular objection made is that the judgment is f()ll' too large amount; that it should have been for a sum less than $2,000, and that for that reason the court lost jurisdiction, and should have dismissed the case. While we are satisfied of the sufficiency of the facts found to support the judgment, the, record does not require a decision of, the question. No objection was made nor exception taken when the judgment was entered, nor, so far as the record shows, was any Sl1ggestion offered that the judgment was not in all respects in conformity with the finding of facts. While it is true, under sectjon 700 of the Revised Statutes, that ''when the finding, is special, the review may extend to the determination of the sufficiency,of the facts found to support the judgment," yet, in order to entjtle a. party to that review, he must have made the proper objecg()n to the judgment as entered, or moved to modify it, and an objection to the action of the court. That was the in the case of Smith v. Sac County, 11 Wall. 139, behalf, and its propriety is manifest, as it gives the COJIl't an opportunity to supply any omission or correct 8Jl errqr ,in findings. The jul1gment is therefore affirmed, with cost8.
ARNOLD v. WOOLSEY et aI. (Oircult Oourt of AppealS, Eighth Oircuit. No. 144WRIT 011' ERROR-DISMISSAL-No REAL CONTROVERSY.
February 8, 1893.)
Where, pending proceedings in error, the same person, by means of pur· chase, has succeeded to the interests of both pIalntUr and defendant, the wrltot. etror should be dismissed, although some third person is interested In the question of coilts. Wood-Paper 00. v. Heft, 8 Wall. 333, 336; East Tennessee, V. & G. R. 00. v. Southern Tel. 00., 8 Sup. Ct. Rep. 1391, 125 U. S. 695; and Little v. Bowers, 10 Sup. Ct. Rep. 620, 134 U. S. 547, 557,followed.
In Error to the Circuit Court of the United States for the District of Nebraska. Action of ejectment, brought by Weston Arnold against George L. Woolsey and others to recover blocks!, 84, 182, and lots 1, 2, and 8, in block G, in' Kearney. A jury was waived, and the case submitted to the court on an agreed' iiltatement of facts. Judgment was rendered for defendants, and plaintiff brings error. On motion to dismiss the writ of error. Gl'anted. John C. Watson and Edwin F. Warren, for the motion. J. M. Woolworth, opposed. Before SANBORN, Circuit Judge, and THAYER, District Judge.