Kearney v. Case
79 U.S. 275

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U.S. Supreme Court

Kearney v. Case, 79 U.S. 12 Wall. 275 275 (1870)

Kearney v. Case

79 U.S. (12 Wall.) 275

Syllabus

1. A paper, found in the record, purporting to be a statement of facts agreed to by the parties, and filed with the clerk after the writ of error is issued, or after the case is disposed of by the circuit court, cannot be noticed here on writ of error through both parties' consent.

2. Prior to the Act of March 3, 1865, parties to an action at law could submit the issues of fact to be tried by the court without a jury, but they were bound by the judgment of the court, and could not have a review on error of any ruling of the court on such trial.

3. To enable parties to have such a review and to enable them to make a valid agreement to waive a jury the act above-mentioned was passed, which for that purpose required the waiver to be in writing and filed with the clerk.

4. There can, under this act, be no review of the ruling of the court in such cases unless the record shows that such an agreement was signed and filed with the clerk.

5. But the existence of such a writing may be shown in this Court 1st, by a copy of the agreement, or 2d, by a statement in the finding of facts by the court that it was executed, or 3d, by such statement in the record

Page 79 U. S. 276

entry of the judgment; or 4th, by such statement in the bill of exceptions.

6. Unless it appears that such an agreement was filed, the judgment must be affirmed unless error appear in other parts of the record than the finding of facts and judgment of the court thereon.

7. Parties may still waive a jury as they could before the act of 1865, without filing a written stipulation, but in such case no error can be considered in the action of the court on such trial, but the judgment will be held valid unless other errors are apparent in the record.

8. Parties will be presumed in this Court to have waived their right to a trial by jury of issues of fact whenever it appears that they were present at the trial in person or by counsel, and made no demand for a jury.

9. But unless it appears that they were so present, or otherwise gave consent, it is error, for which the judgment must be reversed, to try such issues in actions at law without a jury.

The Act of Congress of March 3, 1865, after presenting in its first two sections the manner in which grand and petit jurors are to be selected and empanelled in criminal cases, proceeds in its fourth thus to enact:

"Issues of fact in civil cases in any Circuit Court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or attorneys of record file a stipulation in writing with the clerk of the court waiving a jury."

It then goes on in the same section:

"The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause, in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts to support the judgment."

This statute being in force, Case, on the 13th September, 1868, as receiver of the First National Bank of New Orleans,

Page 79 U. S. 277

brought suit against Kearney on two promissory notes owned by the bank.

Without any agreement in writing filed to have the case tried under the above-quoted act of Congress, or any agreement in writing at all, so far as the transcript of the record showed, a trial was afterwards had by the court, which rendered judgments against the defendant on the 12th of January, 1869.

Though, as above-mentioned, no agreement to submit in writing appeared or was inferable, the record of the judgment showed that counsel were present on both sides when the trial was had. It ran thus:

"December 7, 1868. This cause came up for trial -- J. D. Rouse and Elmore and King, for plaintiff; J. G. L. Bright and Bradford, Lea, and Finney, for defendants -- when, after hearing the pleadings, evidence, and argument, the court considering the same, it is ordered, adjudged, and decreed that Charles Case do recover &c."

A writ of error was applied for and obtained by the defendant, on the 28th of January, 1869, and filed on the same day, a citation being issued and served on that day.

On the 6th of November, 1869, a paper bearing date the 19th of October, 1869, and signed by the plaintiff, and by the counsel for the defendant, was filed in the court below, which contained an agreement by them that the statement of facts set forth therein should be "the statement of facts for the writ of error returnable to the Supreme Court of the United States." There was no bill of exceptions.

On the transcript of such a record, the case came here. The question now was what the court should do on such a record.

Page 79 U. S. 280

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