F. T. Dooley Lumber Co. v. United States

On Petition for Rehearing. The appellant seeks a rehearing upon the ground that this court has misconceived the nature of this action and the questions involved, and has called attention to the fact that, while this is an action at law, it is brought against the United States under subdivision (20) of section 41, title 28 U.S.C. [28 USCA § 41 (20)], and that therefore the statement in the opinion that, ""the making of special findings in an action at law tried by the court is discretionary, and its action in making such findings, in refusing to make requested findings, or refusing to amend findings made, is not subject to exception or review,"" is inaccurate, since section 764 of title 28, U.S.C. (28 USCA § 764), provides that: ""It shall be the duty of the court to cause a written opinion to be filed in the cause, setting forth the specific findings by the court of the facts therein and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon. If the suit be in equity or admiralty, the court shall proceed with the same according to the rules of such courts."" The appellant is correct in this regard, and a failure by the lower court to comply with that section would be ground for reversal. United States v. Kelly (C.C.A.) 89 F. 946; United States v. Tisdale (C.C.A.) 114 F. 883; United States v. Phillips (C.C.A.) 24 F.2d 195.