Suydam v. Williamson et al

was held, in accordance with the principle here advanced, that the action of the Circuit Court of this District, in sustaining a demurrer to a plea of performance in a suit on a replevin bond, was the subject of revision on a writ of error; and the rule adopted in that case was undoubtedly correct, as the effect of the demurrer was to make the error apparent in the record; and when that is so, it becomes the subject of revision just as much as when it is made to appear by a bill of exceptions or a special verdict.

We have now adverted to the several methods acknowledged by courts of error, by which matters resting in parol at the trial in the subordinate tribunal may be put on the record, so as to lay a proper foundation for a revision of the legal questions arising out of them in the appellate court, and there are no others which can be recognised in this court in cases where the proceedings are required to be according to the course of the common law. (Dougherty v. Campbell, 1 Blackf., 24; Cole v. Driskell, 1 Blackf., 16.)

A writ of error is an original writ, and lies only when a party is aggrieved by some error in the foundation, proceedings, judg ment, or execution, of a suit in a court of record, and is defined to be a commission, by which the judges of one court are au thorized to examine a record upon which a judgment was given in another court, and, on such examination, to affirm or reverse; and it was expressly held by this court, in Cohens v. Virginia, (6 Whea., 410,) that the writ of error operated upon the record, and that its effect, under the judiciary act, was to bring it into this court, and submit it to a re-examination; and it is also laid down by the best writers on pleading, that nothing will be error in law that does not appear on the face of the record, for matters not so appearing are not supposed to have entered into the consideration of the judges. (Steph. on Plea., 121.)

The writ of error in this case was issued on the eighteenth day of December, 1854, and on the twenty-ninth day of January, 1855, an additional paper was filed, which in the transcript is denominated the "case," and is the one which furnished all the materials for the discussion at the bar. It purports to contain all the evidence introduced at the trial in the court below, as well that given by the defendant as that given by the plaintiffs, and certain offers of proof on the part of the plaintiffs, which were objected to by the defendant, and excluded by the court. This mass of evidence, with the exhibits, filling sixty pages of the transcript, has respect, on the one side or the other, to the title and right of possession to the premises described in the declaration, and comprises all the evidences of title which were before this court on the former

Suydam v. Williamson et al.

occasion; and, in addition thereto, certain admissions of the parties and other parol evidence. It is now drawn up in the form of a report of the judge who presided at the trial, and is signed by him, and is under seal; and, as we understand the endorsement, is certified to be correct by the counsel of the plaintiffs. The conclusion of the report is as follows:

"A verdict was then, by direction of the court, taken for the plaintiffs, for the premises claimed, subject to the opinion of the court upon the questions of law, with liberty to either party to turn this case into a special verdict or bill of exceptions."

Whatever might have been the right of the parties under that report, it is too plain for argument, that no one connected with its preparation could have regarded it either as a special verdict or a bill of exceptions. All that it professed to do was to give either party the liberty to turn the case into one or the other of those forms of proceeding; and it is a sufficient answer to any pretensions under the report to say, that the change has not been made; that, for some reason unknown to this court, the right to make the change, if such it was, has never been exercised; and that it is now presented here in the form in which it was prepared when it is too late to make the alteration. And we also say, that this court cannot so far depart from the settled practice and regular course of proceeding as to give an effect to the paper which neither its contents nor terms would warrant; nor can we attempt to do for the plaintiff in error what it was his duty to have done at the trial, and before the writ of error was sued out; nor are we prepared to admit that the option given to turn the case either into a special verdict or a bill of exceptions could have been exercised by either party under the concluding portion of that report, without the assent of the judge who presided at the trial, and irrespective of his authority. On the contrary, we conclude that, "where a case shall be made with leave to turn the same into a special verdict or bill of exceptions, the party shall not be at liberty to do either, at his election, but the court may, if they think proper, prescribe the one which he shall adopt." (Conk. Trea., 3d ed., p. 444.)

Nothing less than the presence and assent of the court, we think, can give any legal validity to a special verdiet; and in respect to a bill of exceptions, it must always be signed and sealed by the judge, or else it would be a nullity. (Phelps v. Mayer, 15 How., 160.) A special verdict ought always to be settled under the correction of the judge who presided at the trial, and, whether prepared at the time or subsequently, it should be filed as of the term when the trial took place. (Tur

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ner v. Yates, 16 How., 14; Sheppard v. Wilson, 6 How., 275.) The necessary effect of the proceeding, where the verdict is taken subject to the opinion of the court, would be to postpone the preparation of the special verdict till after the parties were heard, and the opinion given; and to that extent the delay is allowable, though we are by no means prepared to admit that it may be done after the cause has been removed into this court. The result is, we have come to the conclusion, on this branch of the case, that the paper in the transcript denominated the case" must be considered merely as a report of the judge who presided at the trial; that it is not a part of the record, and, consequently, must be wholly disregarded by this court, in determining whether the judgment of the court below ought to be reversed or affirmed. Having come to that conclusion, it becomes unnecessary to notice any of the rulings of the court in admitting or excluding evidence, as no part of that report can be taken into consideration. The question whether the report of a judge who tried the cause was a part of the record, came up directly before this court, in Ingle v. Coolidge, 2 Whea., 863; and, after a deliberate consideration, the court unanimously determined that it did not. It was a writ of error to the Supreme Judicial Court of Massachusetts. The record showed that the jury found a general verdict for the original plaintiff, and the cause was then continued, as the record stated, for the opinion of the whole court upon the law of the case, as reported by the judge who tried the same, and at a subsequent term judgment was rendered for the plaintiff upon the verdict. When the record was brought into this court, the report of the judge was annexed to the writ of error with the other proceedings and exhibits in the cause, and this court, in speaking of the report, said: It is not like a special verdict, or a statement of facts agreed of record, upon which the court is to pronounce its judgment. The judgment was rendered upon a general verdict, and the report is mere matter in pais to regulate the discretion of the court as to the propriety of granting relief, or sustaining a motion for new trial.

Other cases have been decided by this court, ascerting the same general principle, that nothing can be considered upon a writ of error except what appears upon the record; and one in particular, which, in that point of view, bears a very close analogy to the case under consideration. We allude to the case of Minor v. Tillotson, (2 How., 392,) which was a writ of error to the Circuit Court of the eastern district of Louisiana, under the twenty-second section of the judiciary act. A mass of evidence in that case was received from both parties, consisting of concessions and grants under the Spanish Government, inter

Suydam v. Williamson et al.

mediate conveyances, documents showing the proceedings in regard to the title under the laws of the United States, and paroi testimony; and the cause was submitted to the court under an agreement that those documents, proceedings, and parol testimony, constituted all the evidence on which the cause was tried, and that the agreement was "made for a statement of the facts in the case." This court then said, it seems to have been supposed that the agreement of the counsel that the evidence in the cause should be considered as a statement of facts, was a sufficient ground for a writ of error on which a revision of the legal questions might be made, and intimated, very strongly, that if it were so, it would be to require the court to try the cause on its merits, and emphatically declared, "this is never done on a writ of error, which issues according to the course of the common law." And so also it was held in Leland et al. v. Wilkinson, (6 Pet., 317,) that the private laws of a State, and special proceedings of the Legislature of a State, in regard to the sale of the estate of a deceased person for his debts, could not be considered, unless they were found in the record; and in Williams v. Norris, (12 Whea., 117,) it was determined that neither depositions nor exhibits, of any description, constitute "any part of the record on which the judgment of an appellate court is to be exercised, unless made a part of it by a bill of exceptions, or in some other manner recognised by law.". These cases, we think, have a strong tendency to support the proposition, that the paper, in the transcript denominated the "case," cannot be regarded as a part of the record; and if not, then it is clear that it cannot be considered on the present occasion, irrespective of the fact that it was not filed till more than a year after the writ of error issued, which of itself is decisive of the point that it cannot be considered. (Williams v. Norris, 12 Whea., p. 120.)

It is certain, therefore, that there is no error in the record; and the only remaining question is, what disposition ought to be made of the cause, under the circumstances of the case?

An important distinction exists in respect to writs of error issued under the twenty-second section of the judiciary act, from those issued under the twenty-fifth section of the same act, which it becomes nécessary to notice in this connection, in order to maintain a writ of error to this court from a State court within the twenty-fifth section of that act, it must appear on the face of the record that some one, at least, of the questions stated in that section did arise in the State court, and that the question was decided in the State court, as required in the section; and if it does not so appear in the record, then

Suydam v. Williamson et al.

this court has no jurisdiction of the case, and in that event the writ of error must be dismissed, as this court, under those circumstances, has no power either to reverse or affirm the judgment brought up for revision; and such was the state of the record in Inglee v. Coolidge, and accordingly the writ of error was dismissed. The writ of error, however, in this case issued under the twenty-second section of the judiciary act, in respect to which a different rule prevails, as will be seen by attending to the language of the act. That section provides, in effect, that final judgments in a Circuit Court brought there by original process may be re-examined, and reversed or affirmed, in this court, upon a writ of error; and where the cause is brought into this court upon a writ of error issued under that section, and all the proceedings are regular, and no question is presented in the record for revision, it follows, by the express words of the section, that the judgment of the court must be affirmed. Beyond question, the record in this case exhibits every fact required by the section to give this court jurisdiction of the cause, and in strict compliance with the terms of the act. The action was originally brought in the Circuit Court for the southern district of New York, and the record shows a sufficient declaration duly filed in court-a proper and valid issue between the parties-a perfect finding by the jury upon the issue joined, and a regular judgment on the verdict, which was final, unless reversed; and certainly these are all the requisites of a record, according to the requirements of the twenty-second section of the judiciary act, to entitle a party to retain the judgment which has been given in his favor. (Minor et al. v. Tillotson, 1 How., 287; Stevens v. Gladding, 19 How., 64; Lathrop v. Judson, 19 How., 66.) It is only when the special verdict is ambiguous or imperfect, or when it finds only the evidence of facts, and not the facts themselves, or finds but a part of the facts in issue, and is silent as to others, that this court can regard the finding as a mistrial, and order a venire de novo. (Barnes v. Williams, 11 Wheat., 415; Carrington v. Pratt, 18 How., 63; Prentice v. Zane, 8 How., 484.)

When the record exhibits such a state of facts, it is then competent for this court to remand the cause for a new trial, in order that the finding of the jury may be perfected. The record itself in such a case shows the imperfection which it is the purpose of the new trial to remedy, and it constitutes the basis of the action of the court in giving the order to send the cause down to a rehearing. No such imperfection appears on this record. On the contrary, the record shows a perfect finding of the jury, and, on a careful inspection of the tran