Where the certificate of authentication of a record transmitted
to this Court on appeal begins by setting out the name and office
of the clerk of the court below as the maker of the certificate,
and has appended to it the seal of the court, but lacks the
signature of the clerk, this Court has jurisdiction of the appeal,
and if no motion to dismiss is made until it is too late to take a
new appeal, will permit the certificate to be amended by adding the
clerk's signature.
Under the Act of April 7, 1874, c. 80, § 2, an appeal, and not a
writ of error, lies to this Court from the decree of a territorial
court in a proceeding in the nature of a suit in equity, although
issues of fact have been submitted to a jury.
On appeal from the decree of a territorial court in a proceeding
in the nature of a suit in equity, this Court cannot consider the
weight or sufficiency of evidence, but only whether the facts found
by the court below support the decree and whether there is any
error in rulings, duly excepted to, on the admission or rejection
of evidence. . .
A suit to enforce a mechanic's lien under a territorial statute
authorizing the court to order the real estate subject to the lien
to be sold and any deficiency to be paid by the owner as in suits
for the foreclosure of mortgages is in the nature of a suit in
equity.
A court of equity need not formally set aside the verdict of a
jury upon issues submitted to it before making a decree according
to its own view of the evidence.
In a suit in the nature of a suit in equity, a territorial
court, after a jury has found upon special issues submitted to it
and has also returned a general verdict, may set aside the general
verdict and substitute its own findings of fact for the special
findings of the jury.
The case is stated in the opinion.
Page 132 U. S. 510
MR. JUSTICE GRAY delivered the opinion of the Court.
This suit was commenced by Bradbury and Reinhart against the
Idaho and Oregon Land Improvement Company by a complaint filed in a
district court of the Territory of Idaho on September 24, 1883,
alleging in substance that on April 13, 1883, the parties made an
agreement in writing by which the plaintiffs agreed to construct
upon the defendant's land, and on a line designated by the
defendant's engineer in charge of the work, a ditch four miles
long, eight feet wide and two feet deep, and of a certain grade and
slope at certain prices by the cubic yard for the material moved,
and on other terms expressed in the agreement, a copy of which was
annexed; that on May 17, 1883, the parties made a supplemental
agreement, a copy of which was also annexed, increasing the rate of
compensation in some respects; that on June 1, 1883, after the
ditch had been completed by the plaintiffs and accepted by the
defendant, the parties came to a settlement upon which it was
ascertained and agreed that there was due from the defendant to the
plaintiffs the sum of $16,774.49, of which $10,000 was paid, and
for the rest of which the defendant gave its acceptance for the sum
of $6,774.49, payable in fifteen days, which was duly presented at
maturity but in no part paid, and on June 27, 1883, was protested
for nonpayment, and that sum, with interest at the rate of one and
one-half percent a month, was now due from the defendant to the
plaintiffs, and that the plaintiffs, in order to perfect a lien on
the ditch and adjoining land as security for the payment of that
sum, on July 12, 1883, filed with the recorder of the county, as
required by chapter 48 of the Code of Civil Procedure of Idaho
territory, a claim, a copy of which was annexed to the complaint,
stating the substance of the original and supplemental contracts
and the balance due as aforesaid.
The complaint prayed for judgment directing a sale of the
premises and the application of the proceeds to the payment of the
plaintiffs' claim, with interest as aforesaid, and costs, and
twenty percent damages, as provided by the statutes of the
territory, and also to the payment of the holders of any
Page 132 U. S. 511
other liens who might come in, and that the plaintiffs might
have judgment against the defendant for any deficiency in the
proceeds of such sale to satisfy the amount due them, and for
further relief.
The answer denied the completion of the ditch by the plaintiffs
and its acceptance by the defendant or that there was due from the
defendant to the plaintiffs more than the sum of $500, and alleged
that if any settlement was made between the parties, it was under a
misapprehension of facts caused by false and fraudulent statements
of the plaintiffs that the ditch had been completed according to
the contracts.
The court submitted several special issues to a jury, who found
some of them in favor of the plaintiffs and failed to agree upon
others, and returned a general verdict for the plaintiffs in the
sum of $4,274.49 and interest.
The court set aside the general verdict and made and filed
findings of fact, adopting as part thereof the findings of the
jury, as far as they went, and substantially supporting all the
allegations of the complaint, and from the facts so found made the
following conclusions of law:
"1st. That the plaintiffs are entitled to a judgment for the sum
of $10,107.52, and for costs, which includes the sum found due,
interest, and protest damages."
"2d. That the plaintiffs are entitled to a decree of foreclosure
of the lien set forth in their complaint, and it is so
ordered."
By the final decree, rendered at a hearing upon the
pleadings,
"and upon the proofs, records, and evidence produced by the
respective parties, and the court having heard the proofs necessary
to enable it to render judgment herein, and it appearing to the
court from the proofs herein that there is now due to the
plaintiffs from the defendant the sum of $10,107.52, for principal,
damages, and interest upon the debt set forth in the complaint, and
that all the allegations in the complaint are true,"
the court ordered a sale of the premises by public auction the
payment out of the proceeds to the plaintiffs of the sum of
$10,107.52, with costs and interest at the rate of ten percent from
the date of the decree, and the amount of any deficiency to be paid
by the defendant to the plaintiffs.
Page 132 U. S. 512
The defendant moved for a new trial for "insufficiency of the
evidence to justify the verdict and findings" as well as for
"errors in law occurring at the trial, and excepted to."
Upon this motion, the defendant filed a statement which was
certified by the judge as "the statement of the case" and contained
parts of the testimony given and offered at the trial and
exceptions of the defendant to its admission or exclusion,
instructions given to the jury, and excepted to by the defendant,
and a specification of twenty-one errors touching the rulings upon
evidence and the instructions to the jury and the sufficiency of
the evidence in the case and the findings of the jury to support
the court's findings of fact and conclusions of law.
The defendant's motion for a new trial was overruled, and the
defendant excepted to the ruling and appealed "from the judgment
and decree of foreclosure and sale" to the supreme court of the
territory, which adjudged
"that the judgment of the court below be affirmed, and that the
decree for foreclosure of mechanic's lien be modified so as that
the lien shall hold only for the judgment, less the protest
damages."
10 Pac. 620. The defendant claimed an appeal, and sued out a
writ of error.
In order to give this Court jurisdiction of an appeal or writ of
error, "an authenticated transcript of the record" of the court
below must doubtless be filed in this Court at the return term.
Rev.Stat. § 997;
Edmonson v.
Bloomshire, 7 Wall. 306.
In the case before us, a motion to dismiss is now made on the
ground that the record is not authenticated, because neither the
clerk nor the deputy clerk made the return "under his hand" as well
as under the seal of the court, as required by Rule 8 of this
Court.
In support of this motion, reliance is placed on
Blitz v.
Brown, 7 Wall. 693, in which the only certificate
of authentication was a blank form, wanting both the seal of the
court below and the signature of the clerk, so that there was
really no authentication whatever, and this Court therefore
dismissed the writ of error, but permitted the plaintiff in
error
Page 132 U. S. 513
to withdraw the record, for the purpose of suing out a new
writ.
But in the case at bar, the certificate not only begins with
setting out the name and office of the clerk as the maker of the
certificate, but has appended to it the seal of the court, and
lacks only the clerk's signature to make it conform to the best
precedents. The question presented is not one of no authentication,
but of irregular or imperfect authentication; not of jurisdiction,
but of practice. It is therefore within the discretion of this
Court to allow the defect to be supplied. Considering that the
motion to dismiss was not made until it was too late to take a new
appeal or writ of error, justice requires that the record should be
permitted to be withdrawn for the purpose of having the certificate
of authentication perfected by adding the signature of the
clerk.
In Idaho, as in other territories, there is but one form of
civil action, in which either legal or equitable remedies or both
may be administered, through the intervention of a jury or by the
court itself, according to the nature of the relief sought,
provided, however, that no party can be "deprived of the right of
trial by jury in cases cognizable at common law." Rev.Stat. § 1868;
Act of Congress of April 7, 1874, 18 Stat. 27, c. 80, § 1; Code
Civil Proc. Idaho 1881, §§ 138, 139, 230, 309, 353;
Ely v. New
Mexico Railroad, 129 U. S. 291.
Congress has prescribed that the appellate jurisdiction of this
Court over "judgments and decrees" of the territorial courts, "in
cases of trial by jury, shall be exercised by writ of error, and in
all other cases by appeal," and
"on appeal, instead of the evidence at large, a statement of the
facts of the case in the nature of a special verdict, and also the
rulings of the court on the admission or rejection of evidence when
excepted to, shall be made and certified by the court below,"
and transmitted to this Court with the transcript of the record.
Act April 7, 1874, 18 Stat. 27, 28, c. 80, § 2.
The necessary effect of this enactment is that no judgment or
decree of the highest court of a territory can be reviewed by this
Court in matter of fact, but only in matter of law. As observed by
Chief Justice Waite,
"We are not to consider the
Page 132 U. S. 514
testimony in any case. Upon a writ of error, we are confined to
the bill of exceptions, or questions of law otherwise presented by
the record, and upon an appeal, to the statement of facts and
rulings certified by the court below. The facts set forth in the
statement which must come up with the appeal are conclusive on
us."
Hecht v. Boughton, 105 U. S. 235,
105 U. S.
236.
The provision of this act, permitting a writ of error "in cases
of trial by jury" only, evidently has regard to a trial by jury, as
in an action at common law, in which there is and must be a trial
by jury, and the court is not authorized to try and determine the
facts for itself unless a jury is waived by the parties according
to statute, and has no application to a trial of special issues
submitted to a jury in a proceeding in the nature of a suit in
equity, not as a matter of right, or to settle the issues of fact,
but at the discretion of the court, and simply to inform its
conscience and to aid it in making up its own judgment upon the
facts, and the real trial of the facts is by the court, and not by
a jury. In all proceedings in the territorial courts in the nature
of suits in equity, therefore, as well as in those proceedings in
the nature of actions at common law, in which no trial by jury is
had, either because a jury has been duly waived or because the
issues tried are issues of law only, the appellate jurisdiction of
this Court must be invoked by appeal, and not by writ of error.
Davis v. Alvord, 94 U. S. 545;
Davis v. Fredericks, 104 U. S. 618;
Story v. Black, 119 U. S. 235.
It must also be borne in mind that, as already seen, in either
class of cases, whether equitable or legal, coming up by appeal
from a territorial court after a hearing or trial on the facts, the
evidence at large cannot be brought up, as it is in cases in
equity, from the circuit courts of the United States, but only "a
statement of facts in the nature of a special verdict," and rulings
made at the trial, and duly excepted to, on the admission or
rejection of evidence. Consequently the authority of this Court on
appeal from a territorial court is limited to determining whether
the court's findings of fact support its judgment or decree, and
whether there is any error in rulings
Page 132 U. S. 515
duly excepted to, on the admission or rejection of evidence, and
does not extend to a consideration of the weight of evidence, or
its sufficiency to support the conclusions of the court.
Stringfellow v. Cain, 99 U. S. 610;
Cannon v. Pratt, 99 U. S. 619;
Neslin v. Wells, 104 U. S. 428;
Hecht v. Boughton, 105 U. S. 235,
105 U. S. 236;
Gray v. Howe, 108 U. S. 12;
Eilers v. Boatman, 111 U. S. 356;
Zeckendorf v. Johnson, 123 U. S. 617.
The present suit was brought to enforce a mechanic's lien
created by the statutes of the territory which authorize the court
in such a suit to order both a sale of the real estate that is
subject to the lien and judgment against the owner thereof for
deficiency in the proceeds of the sale, "in like manner and with
like effect as in actions for the foreclosure of mortgages." Idaho
Code of Civil Procedure §§ 815, 826. The relief provided for in
those statutes, sought by the complaint and granted by the court,
was purely equitable, and the proceeding was in the nature of a
suit in equity.
Canal Co. v.
Gordon, 6 Wall. 561;
Davis v. Alvord,
94 U. S. 545;
Brewster v.
Wakefield, 22 How. 118,
63 U. S. 128;
Walker v.
Dreville, 12 Wall. 440;
Marin v.
Lalley, 17 Wall. 14; Rule 92 in Equity.
The district court so treated the case, as is evident from its
having made its own findings of fact on some of the questions at
issue and having based its decree, not upon the findings of the
jury, but upon the proofs produced at the final hearing, neither of
which would it have been authorized to do, had the suit been in the
nature of an action at common law, the parties not having waived a
trial by jury.
Morgan v. Gay,
19 Wall. 81;
Hodges v. Easton, 106 U.
S. 408;
Baylis v. Insurance Co., 113 U.
S. 316; Act of Congress of April 7, 1874, 18 Stat. 27,
c. 80, § 1; Idaho Code of Civil Procedure §§ 361, 389.
The writ of error must therefore be dismissed, and the case
considered as pending upon the appeal alone.
Stringfellow v.
Cain, 99 U. S. 610,
99 U. S.
612.
The case being one of equitable jurisdiction only, the court was
not bound to submit any issue of fact to the jury, and, having done
so, was at liberty to disregard the verdict and findings of the
jury either by setting them, or any or them,
Page 132 U. S. 516
aside or by letting them stand and allowing them more or less
weight in its final hearing and decree according to its own view of
the evidence in the cause. By the settled course of decision in
this Court, it is not necessary that a court of equity should
formally set aside the verdict or finding of a jury before
proceeding to enter a decree which does not conform to it.
Prout v.
Roby, 15 Wall. 472,
82 U. S. 475;
Basey v.
Gallagher, 20 Wall. 670;
Garsed v. Beall,
92 U. S. 684,
92 U. S. 695;
Johnson v. Harmon,
94 U. S. 371,
94 U. S. 372;
Watt v. Starke, 101 U. S. 247,
101 U. S. 252;
Quinby v. Conlan, 104 U. S. 420,
104 U. S. 424;
Wilson v. Riddle, 123 U. S. 608,
123 U. S.
615.
The case of
Basey v. Gallagher, just cited, is quite
analogous to the case at bar. In a suit brought in a district court
of the Territory of Montana for an injunction against the diversion
of a running stream in which the plaintiff asserted a right by
prior appropriation for the purpose of irrigation, the court
submitted specific issues to a jury, and afterwards heard the case
upon the pleadings and proofs and the findings of the jury, and
rendered a decree for the plaintiffs in which it disregarded some
of those findings and adopted others, and that decree was affirmed
by the supreme court of the territory, and by this Court on appeal,
notwithstanding a provision in the statutes of that territory,
similar to § 361 of the Idaho Code of Civil Procedure, that in
civil actions, "an issue of fact must be tried by a jury, unless a
jury trial is waived."
The action of the district court of the Territory of Idaho
therefore in setting aside the general verdict, and substituting
its own findings of fact for the special findings of the jury, was
a lawful exercise of its equitable jurisdiction, the propriety of
which cannot be reviewed by this Court, and it is quite immaterial
whether the general verdict was consistent with the findings of the
jury or with the evidence introduced at the trial.
The only other matters specified or argued in the brief of the
appellant are two exceptions to the admission or rejection of
evidence.
The first exception was to the admission of evidence, offered by
the plaintiffs, tending to show that, by the direction and with the
consent of one case, the defendant's vice-president
Page 132 U. S. 517
and general manager, and under the supervision of the
defendant's engineer, the ditch was made ten feet wide and three
feet deep, whereas the original contract annexed to the complaint
was for a ditch eight feet wide and two feet deep. But the supposed
variance between the complaint and the proof did not exist. The
complaint did not proceed upon the written contracts alone, but
upon the defendant's acceptance of the ditch and the subsequent
settlement between the parties. And the court found as facts that
the changes in the dimensions of the ditch were made with the
knowledge and consent of case, and before the execution of the
supplemental agreement; that the ditch, when completed, was
accepted by the defendant, through its general manager, and had
ever since been appropriated and used by the defendant; that the
settlement between the parties was based upon estimates and
measurements made by the defendant's engineer in charge of the
construction of the ditch, and that there was no fraud or
misrepresentation on the part of the plaintiffs in or concerning
that settlement.
The other exception was to the exclusion of testimony, offered
by the defendant, of one Strahorn, its general manager at the time
of the completion and acceptance of the ditch, and who had
previously been its treasurer, tending to show that at the time of
the execution of the original contract, the plaintiffs were
informed by him that case had no authority from the defendant to
contract for a ditch of larger dimensions than those specified in
that contract. But it was a sufficient reason for excluding that
testimony that the offer was only to show that the plaintiffs were
told that case had no authority to vary the dimensions of the
ditch, and was unaccompanied by any offer of evidence that case had
in fact no such authority, and at the time of the offer, no
evidence as to the actual authority of case appears to have been
introduced, and the offer to prove the information given to the
plaintiffs was not renewed after the court had allowed Strahorn,
against objection and exception by the plaintiffs, to testify that
neither he nor case had any authority from the defendant's board of
directors to enlarge the dimensions of the ditch, and that the
board had never ratified the enlargement of the ditch.
Page 132 U. S. 518
It does not appear that the whole evidence at the trial is
recited in the statement of the case, and if it had been, this
Court, as already shown, could have considered it for the single
purpose of passing upon the exceptions taken to the admission or
rejection of parts of it, and not for the purpose of deciding
whether the whole evidence supported the findings of the court.
The result is that the appellant has not been prejudiced by the
rulings and decree below in any particular within the appellate
jurisdiction of this Court.
Ordered that the record may be withdrawn and amended by
procuring the signature of the clerk of the supreme court of the
territory to the certificate of authentication, and that upon the
return of the record so amended, the decree of that court be
affirmed.