KENNEDY v. UNITED STATES

KENNEDY v. UNITED STATES. No. 6148. Circuit Court of Appeals, Ninth Circuit. Oct. 20, 1930. Charles S. Wheeler, Jr., and Edmund F. Maher, both of San Francisco, Cal., for appellant. Geo. J. Hatfield, U. S. Atty., and Sol. A. Abrams, Asst. U. S. Atty., both of San Francisco, Cal. Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge. [MAJORITY — RUDKIN, Circuit Judge.] RUDKIN, Circuit Judge. This was a proceeding by libel to forfeit and condemn two 50-gallon drums of alcohol, imported or brought into the United States from the Philippine Islands in violation of the Tariff Act (42 Stat. 858), and the National Prohibition Act (27 USCA). The seizure of the alcohol was made upon land, after the arrival of the shipment at the port of San Francisco, not within the admiralty jurisdiction of the United States, and it is well settled in such cases that the proceeding for forfeiture is by action at Law, triable by jury, unless a jury is waived in the manner prescribed by law. The Sarah, 8 Wheat. 391, 5 L. Ed. 644; Armstrong’s Foundry, 6 Wall. 766, 18 L. Ed. 882; Confiscation Cases, 7 Wall. 454, 462, 19 L. Ed. 196; Morris’ Cotton, 8 Wall. 507, 19 L. Ed. 481; Garnhart v. United States, 16 Wall. 162, 21 L. Ed. 275; Confiscation Cases, 20 Wall. 92, 22 L. Ed. 320; Shawnee Nat. Bank v. United States (C. C. A.) 249 F. 583; National Surety Co. v. United States (C. C. A.) 17 F.(2d) 372. It is equally well settled that, if an action at law is tried by the court- without a written waiver of a jury, the jurisdiction, of the appellate court to review the judgment is limited to the process, pleadings, and judgment. This latter proposition is too firmly established to require citation of authority. See, however, United States v. McGovern (C. C. A.) 299 F. 302; Graver Corporation v. Hercules Gasoline Co. (C. C. A.) 16 F. (2d) 459; National Surety Co. v. United States, supra; Greer-Robbins Co. v. United States (C. C. A.) 19 F.(2d) 841. Here there was no waiver of a jury, by stipulation or otherwise. The judgment must therefore bo affirmed, and it is so ordered.