Allowing and signing a bill of exceptions is a judicial act,
which can only be performed by the judge who sat at the trial, and
section 953 of the Revised Statutes is intended to provide and does
provide that no bill of exceptions can be deemed sufficiently
authenticated unless signed by the judge who sat at the trial, or
by the presiding judge if more than one sat.
This action being an action of ejectment, the provision in
section 3524 of the Oregon Code with regard to actions for forcible
entry and detainer have no application to it.
In May, 1896, Ohlin H. Adsit filed a complaint against John F.
Malony in the United States District Court for the District of
Alaska, to recover possession of the undivided one-half of a tract
of land in the Town of Juneau, District of Alaska. The complaint
averred that on the 29th day of April, 1891, and for more than nine
years prior thereto, the plaintiff and his grantors were the owners
by right of prior occupancy and actual possession of the land in
question, and that plaintiff was entitled to the possession
thereof; that one James Weim was the owner of the other undivided
one-half part of said land; that, on or about the 29th day of
April, 1891, the defendant and his grantor, without right or title
so to do, entered thereon, and ousted and ejected the plaintiff and
his grantors therefrom, and from thence hitherto have wrongfully
withheld possession from the plaintiff.
The plaintiff prayed judgment for the recovery of the possession
of an undivided one-half part or interest of, in, and to the whole
of the described premises, and for his costs and disbursements in
Page 175 U. S. 282
On June 8, 1896, the defendant demurred to the complaint on the
alleged ground that the same did not state facts sufficient to
constitute a cause of action.
On October 9, 1896, the court overruled the demurrer and gave
leave to the defendant to file an answer. An answer and replication
thereto were filed. The case was tried August 10, 1897, before
Arthur K. Delany, district judge, a jury having been waived. Judge
Delany made the following findings of facts and conclusions of
"This cause having been regularly called for trial before the
court -- a jury trial having been expressly waived by stipulation
in open court of the respective parties appearing herein -- Johnson
& Heid appeared as attorneys for the plaintiff, and John F.
Malony, the defendant herein, appeared in proper person, and the
court having heard the proofs of the respective parties and
considered the same and the records and papers in the cause and the
arguments of the respective attorneys thereon, and the cause having
been submitted to the court for its decision, the court now finds
the following facts:"
"I. That on the 19th day of April, 1881, the plaintiff and his
grantors entered into actual possession of all that certain lot,
piece, or parcel of land described in the complaint as lot numbered
four (4), in block numbered four (4), in the Town of Juneau,
District of Alaska, according to the plat and survey of said Town
of Juneau made by one G. C. Hanus, accepted and adopted in the year
1881 by the citizens of the town formerly known as Rockwell, but
now Juneau, Alaska, said lot being situated on the corner of Second
and Franklin Streets, in said Town of Juneau, claiming said lot,
piece, or parcel of land in their own right, and the said plaintiff
and his grantors have, ever since the date last aforesaid,
occupied, used, and possessed said lot or piece or parcel of land,
having erected a substantial frame or wooden building or structure
thereon, using and claiming the same in their own right from that
date to the present time adversely to all the world, and especially
as against the defendant."
"II. That the plaintiff is the owner of an undivided one-half
(1/2) part or interest of, in, and to said lot No 4, in said
Page 175 U. S. 283
block No. 4, hereinbefore described, and that the whole of said
lot, piece, or parcel of land in the complaint described lies
within the said Town of Juneau, Alaska."
"III. That on or about the 29th day of April, 1891, the
defendant, without right or title so to do, entered on and upon
said described lot, piece, or parcel of land in the complaint
described and ousted and ejected the plaintiff and his grantors
therefrom, and from thence hitherto has wrongfully withheld the
possession thereof from the said plaintiff."
"As conclusions of law from the foregoing facts, the court now
hereby finds and decides:"
"1. That the plaintiff is the owner and entitled to the
possession of an undivided one-half part or interest of, in, and to
said lot, piece, or parcel of land as the same is described in the
complaint on file herein as against the defendant and all persons
claiming or to claim the same or any part of said right or interest
of the plaintiff in and to said lot, piece, or parcel of land under
him, the said defendant, and that the defendant has no right,
title, or interest in or to said land or any part thereof."
"2. That the plaintiff is entitled to a judgment, as prayed for
in his complaint, for the recovery of the possession of an
undivided one-half part or interest of, in, and to said lot No. 4,
in said block No. 4, in said Town of Juneau, against said defendant
and all persons claiming or to claim the same or any part thereof
under or through the said defendant."
"3. That the plaintiff is entitled to a judgment for costs, to
be taxed herein, against the defendant."
"And judgment is hereby ordered to be entered accordingly."
On August 11, 1897, a motion for a new trial was made and
overruled. Judgment for the plaintiff was duly entered, and on
September 20, 1897, the plaintiff was put in possession of the
premises in dispute, in pursuance of a writ of possession allowed
by Hon. Charles S. Johnson, judge of the United States district
court, who had succeeded Hon. Arthur R. Delany to that office.
On September 6, 1897, the defendant gave notice of an
Page 175 U. S. 284
appeal to the United States Circuit Court of Appeals for the
Ninth Circuit. On January 4, 1898, the defendant acting on a
decision of the Supreme Court of the United States, wherein it was
held that such causes were not appealable to the circuit court of
appeals, but that appeals in such cases should be prosecuted to the
Supreme Court of the United States, prayed for an appeal to this
Court, which was on said day allowed as prayed for by Judge
On January 4, 1898, a bill of exceptions, to which was appended
a statement, signed by the counsel of the respective parties, that
the bill of exceptions was correct and in accordance with the
proceedings had in the trial of the cause, and the record discloses
that, on said 4th of January, 1898, the bill of exceptions was
settled and allowed by Judge Johnson.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
An inspection of this record discloses that the bill of
exceptions was not settled, allowed, and signed by the judge who
tried the case, but by his successor in office, several months
after the trial. It is settled that allowing and signing a bill of
exceptions is a judicial act, which can only be performed by the
judge who sat at the trial. What took place at the trial, and is a
proper subject of exception, can only be judicially known by the
judge who has acted in that capacity. Such knowledge cannot be
brought to a judge who did not participate in the trial or to a
judge who has succeeded to a judge who did, by what purports to be
a bill of exceptions, but which has not been signed and allowed by
the trial judge.
Section 953 of the Revised Statutes is as follows:
Page 175 U. S. 285
of exceptions allowed in any cause shall be deemed sufficiently
authenticated if signed by the judge of the court in which the
cause was tried, or by the presiding judge thereof, if more than
one judge sat at the trial of the cause, without any seal of court
or judge being annexed thereto."
We understand this enactment to mean that no bill of exceptions
can be deemed sufficiently authenticated unless signed by the judge
who sat at the trial, or by the presiding judge if more than one
In Mussina v.
6 Wall. 363, after the case had been
elaborately argued on the merits, it was discovered by the court
that the bill of exceptions had not been either signed or sealed by
the judge below. Thereupon the court delivered the following
"Whatever might be our opinion of the exceptions which appear in
the record, if they were presented in such a way that we could
consider them,. we find them beyond our reach. The bill of
exceptions, or what purports to be a bill of exceptions, covering
more than three hundred and fifty pages of the printed record, is
neither signed nor sealed by the judge who tried the cause, and
there is nothing which shows that it was submitted to him or in any
way received his sanction. We are therefore constrained to affirm
Borrowscale v. Bosworth,
a case reported in 98 Mass.
34, presented a somewhat similar question. There, a judge of the
trial court took a bill of exceptions that had been substantially
agreed on by the parties and duly filed, to examine whether the
statement of his rulings was correct, with the understanding that,
if correct, he should allow the bill. However, the judge retained
the bill without allowing it for more than a year, and resigned his
office without having done so. Afterwards, in such circumstances, a
motion was made for a new trial in the trial court, and allowed. To
the ruling which allowed a new trial the plaintiffs took an
exception and carried the case to the Supreme Judicial Court. That
court refused to disturb the order of the court below awarding a
new trial, and held that, where it appears to the court that a
party has been deprived, without his fault, of a right
Page 175 U. S. 286
or remedy which the law gives him, it would generally be held a
legal reason for granting a new trial. The court cited the English
cases of Nind v. Arthur,
7 Dowl. & Lowndes 252, where,
upon the death of Mr. Justice Coltman before allowing a bill of
exceptions which had been presented to him, a new trial was
granted; also Benett v. P. & O. Steamship Company,
C.B. 29, where the settling of a bill of exceptions having been
delayed by the appointment of Chief Justice Wilde as Lord
Chancellor, and afterwards by reason of his infirm health all hope
of it having been lost, a new trial was granted by the trial court.
Also the case of Newton v. Boodle,
3 C.B. 796, where the
death of Chief Justice Tindal prevented the sealing of a bill of
exceptions, without laches of the excepting party, which was
regarded as good ground for a motion for a new trial.
The rationale of these cases evidently was that the court of
errors could not consider a bill of exceptions that had not been
signed by the judge who tried the case, and that such failure or
omission could not be supplied by agreement of the parties, but
that the only remedy was to be found in a motion for a new
Those cases were cited with approval by this Court in Hume
v. Bowie, 148 U. S. 245
where it was held that where the judge presiding at the trial of a
cause in the Supreme Court of the District of Columbia at circuit
dies without having settled a bill of exceptions, it is in order
for a motion to be made to set aside the verdict and order a new
trial, and that where such an order is made by the court in general
term, it is not a final judgment from which an appeal may be taken
to this Court. It is true that there is a rule of the Supreme Court
of the District of Columbia which provides that in case the judge
is unable to settle the bill of exceptions and counsel cannot
settle it by agreement, a new trial shall be granted, and that this
Court regarded that rule as applying to the case in hand, and that
hence a new trial was a matter of course.
In Young v.
8 Wall. 357, where the exceptions were
noted by the clerk of the trial court and so appeared
Page 175 U. S. 287
in the record, it was held that
"to be of any avail, exceptions must not only be drawn up so as
to present distinctly the ruling of the court upon the points
raised, but they must be signed and sealed by the presiding judge.
Unless so signed and sealed, they do not constitute any part of the
record which can be considered by an appellate court."
In Origet v. United States, 125
U. S. 243
, the record contained a paper headed "Bill of
Exceptions." At the foot of the paper appeared the following:
"Allowed and ordered on file, Nov. 22, '83. A.B." And it was
"This cannot be regarded as a proper signature by the judge to a
bill of exceptions, nor can the paper be regarded for the purposes
of review as a bill of exceptions. . . . Section 953 of the Revised
Statutes . . . merely dispensed with the seal. The necessity for
the signature still remains. We cannot regard the initials 'A.B.'
as the signature of the judge, or as a sufficient authentication of
the bill of exceptions, or as sufficient evidence of its allowance
by the judge or the court. Therefore, the questions purporting to
be raised by the paper cannot be considered."
In State v. Weiskittle,
61 Md. 51, it was said:
"In this state, it is not admissible for another judge to pass
upon the correctness of his predecessor's ruling in such case. The
new trial will go as a matter of course."
It certainly cannot be contended that if the trial judge is able
officially to sign the bill of exceptions, it would be competent
for the counsel to dispense with his action and rely upon an agreed
statement of the facts and law of the case as tried. Nor can they
agree that another than the trial judge may perform his functions
in that regard. In Lynch v. Craney,
95 Mich.199, it was
said that the practice of stipulating a bill of exceptions without
the sanction of the judge cannot be commended, and if such fact be
brought to the attention of the court before the argument of the
case, the appeal will be dismissed.
In Coburn v. Murray,
2 Me. 336, it was held that a bill
unauthenticated by the trial judge cannot be given validity by
consent of counsel.
Page 175 U. S. 288
We are referred to no decision of this Court on the precise
question whether counsel can stipulate the correctness of a bill of
exceptions not signed by the trial judge. But we think that, on
principle, this cannot be done, and we regard the cases just cited
as sound statements of the law.
Accordingly, our conclusion is that the errors of the trial
court alleged in the bill of exceptions, unauthenticated by the
signature of the judge who sat at the trial, cannot be considered
The defendant's demurrer to the complaint, on the ground that it
did not state facts sufficient to constitute a cause of action
having been overruled, and the defendant not having elected to
stand on his demurrer, but having availed himself of the leave of
the court to file an answer, and his several objections to the
admission of evidence at the trial not having been brought before
us by a proper bill of exceptions, all that is left for us to
consider is whether, on the facts found by the court below, the
plaintiff was entitled to judgment.
Those facts, briefly stated, were that the plaintiff and his
grantors on April 19, 1881, entered in actual possession of the
land in dispute; put substantial improvements thereon, and
continued in possession, under claim of right and adversely against
the defendant and all others, till on April 29, 1891, the
defendant, without right or title so to do, entered upon the said
land, and ejected the plaintiff therefrom; that the plaintiff was
the owner of an undivided one-half part or interest of, in, and to
said land in the complaint described, and that the defendant
wrongfully withheld the same from him.
From their findings, the court drew the conclusions of law that
the plaintiff was entitled to recover possession of the said land
in dispute, being the undivided one-half part or interest of, in,
and to said lot No. 4, in said block No. 4, in said Town of Juneau,
against said defendant and all persons claiming under him, and to
recover a judgment for said possession and for costs.
The appellant now contends that, under section 318 of Hill's
Oregon Code (which by the Act of May 17, 1884, 23 Stat. 24, was
made applicable to Alaska, and which is in the following
Page 175 U. S. 289
terms: "The plaintiff in his complaint shall set forth the
nature of his estate in the property, whether it be in fee, for
life, or for a term of years, and for whose life, or the duration
of such term, and that he is entitled to the possession thereof,
and that the defendant wrongfully withholds the same from him to
his damage such sum as may be therein claimed"), the plaintiff
failed to plead the nature of his estate in the property, whether
it be in fee, for life, or for a term of years.
Without stopping to consider whether the defendant could be
heard to again raise a question that had been decided against him
on his demurrer to the complaint, we think that the objection is
not a sound one. The plaintiff alleged, and the court has found,
that for more than nine years prior to April 29, 1891, he and his
grantors were the owners by right of prior occupancy and actual
possession of the land in dispute.
In the condition of things in Alaska under the Act of May, 1884,
providing a civil government for Alaska, and under the twelfth
section of the Act of March 3, 1891, 26 Stat. 1100, the only titles
that could be held were those arising by reason of possession and
continued possession, which might ultimately ripen into a fee
simple title under litters patent issued to such prior claimant
when Congress might so provide by extending the general land laws
or otherwise. Davenport v.
13 Wall. 418.
In Bennett v. Harkrader, 158
U. S. 447
, brought to this Court by a writ of error to
the District Court of the United States for the District of Alaska,
it was said by MR. JUSTICE BREWER, in disposing of a somewhat
"Where the complaint alleges that the plaintiff is entitled to
the possession of certain described property, which is unlawfully
detained by the defendant and the possession of which the plaintiff
prays to recover, a general verdict for the plaintiff is a finding
that he is entitled to the possession of all the property described
in the complaint. Again, in this action, brought under a special
statute of the United States in support of an adverse claim, but
one estate is involved in the controversy. No title in fee is or
can be established. That remains in the United States, and the only
question presented is the priority of right to purchase
Page 175 U. S. 290
the fee. Hence the inapplicability of a statute regulating
generally actions for the recovery of real estate, in which actions
different kinds of title may be sufficient to sustain the right of
recovery. It would be purely surplusage to find in terms a priority
of the right to purchase when that is the only question which can
be litigated in such statutory action."
This principle applies more strongly to the present case, in
which the real nature of the plaintiff's estate in the property is
truly alleged as ownership by right of prior occupancy and actual
possession, and was so found to be by the trial court.
The same view of the nature of a title to a lot in a townsite in
Alaska, under these acts of Congress, was expressed by the District
Court of the United States for the District of Alaska in the case
of Carroll v. Price,
81 F. 137. As, then, the only kind of
estate that could be held was that of possession, it was sufficient
for the plaintiff to allege that his was of that nature.
It is next contended on behalf of the plaintiff in error that
even if the complaint should be held otherwise sufficient, yet the
action must fail because coming within section 3524, Hill's
(Oregon) Code, which is as follows:
"In an action to recover the possession of any land, tenement,
or other real property, where the entry is forcible or where the
possession thereof is unlawfully held by force, the merits of the
title shall not be inquired into, and three years' quiet possession
of the premises immediately preceding the commencement of such
action by the party in possession, or those under whom he holds,
may be pleaded in bar thereof, unless the estate of such party in
the premises is ended."
It is argued that as the complaint was filed in the court below
May 25, 1896, more than five years from the day of entry alleged in
the complaint, and as the defendant pleaded in bar of the action
the three years' quiet possession of the premises immediately
preceding its commencement, the defendant is entitled to a judgment
If this were indeed an action in forcible entry and detainer,
and as the complaint shows on its face that the defendant's
possession was longer than three years prior to the
Page 175 U. S. 291
of the action, then the defendant was entitled to have had his
demurrer sustained. But he did not stand on his demurrer, but
availed himself of the court's leave to answer, and hence it might
well be questioned whether it was competent for him to again raise
in his answer a question already ruled against him under his
But this it is unnecessary to consider, because it is altogether
clear that, on the complaint and the facts found, this was not an
action for a forcible entry and detainer under the section of the
Oregon Code pleaded by the defendant, but was an action of
ejectment to which the statute pleaded did not apply.
The judgment of the District Court of the United States for the
District of Alaska is