BOARD OF COUNTY COMMISSIONERS OF CREEK COUNTY, OKLAHOMA, Plaintiff in Error, v. W. C. FOSTER, Defendant in Error

BOARD OF COUNTY COMMISSIONERS OF CREEK COUNTY, OKLAHOMA, Plaintiff in Error, v. W. C. FOSTER, Defendant in Error. Circuit Court of Appeals, Eighth Circuit. April 20, 1928. No. 7896. In Error to the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge. Grady Lewis, of Sapulpa, Okl. (W. F. Pardoe, of Sapulpa, Old., on the brief), for plaintiff in error. Solon W. Smith, of Oklahoma City, Okl. (James S. Twyford, of Oklahoma City, Okl., on the brief), for defendant in error. Before KENYON, Circuit Judge, and SCOTT and SYMES, District Judges. [MAJORITY — SCOTT, District Judge.] SCOTT, District Judge. This is an action at law by W. C. Foster against the board of county commissioners of Creek county, Oklahoma, to recover moneys alleged to have been paid on account of taxes illegally assessed. A jury was waived, hut not by stipulation in writing filed by the clerk. The court referred the matter to a special referee, who found facts and conclusions of law a.nd reported the same. Exceptions were filed to the referee’s report, and the cause submitted to the trial court upon the referee’s report, the exceptions, and stipulations of facts. And thereupon the trial court overruled the exceptions of the defendant to the referee’s report, approved his findings, and entered a general judgment against the defendant in favor of the plaintiff. The board of county commissioners bring the case here upon writ of error, and assign three errors. Each of the assignments would require a consideration and a review of the evidence in the ease. The defendant in error has filed a motion to dismiss this appeal, upon the ground that there was no waiver of jury in writing, as provided by sections 649 and 700 of the Revised Statutes (title 28, sections 773 and 875, U. S. Code Annotated); that a general judgment was entered in favor of the plaintiff, and that there is nothing on the record which this court can lawfully review. Examination of the record convinces us that the motion is well taken, and that the appeal must be dismissed; and it is so ordered. Dismissed.