Where, in a case tried by the court below, the record does not affirmatively show a written stipulation waiving a jury, the questions decided at the trial cannot be re-examined here on a writ of error.
ERROR to the Circuit Court of the United States for the Southern District of Illinois.
The case is stated in the opinion of the court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
This is a case tried and determined by the court without the intervention of a jury. The record does not show any stipulation in writing waiving a jury. The errors assigned all relate to rulings of the court on the trial, excepted to at the time, and presented by a bill of exceptions. The rule is well settled, that if a written stipulation waiving a jury is not in some way shown affirmatively in the record, none of the questions decided at the trial can be re-examined here on writ of error. Kearney v. Case, 12 Wall. 275; Gilman v. Illinois Mississippi Telegraph Co., 91 U.S. 603; Boogher v. New York Life Insurance Co., 103 id. 90; Hodges v. Easton, ante, p. 408.
For this reason, and without passing on any of the questions presented by the assignment of errors, the judgment is
Affirmed.
NOTE. — County of Alexander v. Kimball, error to the same court as the preceding case, was submitted by Mr. William B. Gilbert for the plaintiff in error, and by Mr. T.C. Mather for the defendant in error. It involved the precise question decided in that case, and a judgment to the same effect was rendered.