Exhibits sent by the trial court to the reviewing court may be
identified and made part of the bill of exceptions by appropriate
reference in the bill itself. P.
276 U. S.
391.
18 F.2d 369 reversed.
Certiorari, 275 U.S. 513, to a judgment of the circuit court of
appeals which affirmed the judgment of the district court in an
action on a reparation order made by the Interstate Commerce
Commission. The court below refused to pass on the merits, upon the
ground that evidence involved was not in the bill of
exceptions.
MR. CHIEF JUSTICE TAFT delivered and opinion of the Court.
Krauss Bros. Lumber Company is a corporation engaged in the
wholesale lumber business, to whom the Interstate Commerce
Commission, on the complaint of the company, ordered the respondent
railroad companies, the Mobile & Ohio Railroad and the Alabama
Great Southern Railroad Company, to pay reparation in the amount of
$10,356 because of unlawful demurrage charges illegally collected.
The sole issue was whether any such power had been vested in the
Commission as would give it jurisdiction
Page 276 U. S. 387
to decide that the charges should be refunded. Upon the
Commission's decision that it had such power, the parties,
following its suggestion, filed formal stipulations under Rule V of
the Commission's practice admitting the amounts of the charges, the
illegality of which had been declared by the Commission, and
thereupon the reparation order was made.
The view of the defendants was that the Commission had no power
to order a return of these demurrage charges, since, by the common
law, quite outside the functions and powers of the Commission, a
carrier could reject a tender of goods for initial transportation
while there were existing embargoes, and in the same way could
reject a demand for reconsignment to points embargoed at the time
of initial acceptance for shipment, and so demurrage had accrued
until the consignees accepted actual delivery of the goods. Payment
not having been made on or before December 28, 1922, as directed by
the Commission, the present suit was filed by the petitioner as
plaintiff against the respondents as defendants on March 20, 1923,
in the United States District Court for the Northern District of
Alabama. The complaint conformed to the provisions of § 16 of the
Interstate Commerce Act, and contained the findings and order of
the Commission as a part thereof.
The case came on for trial, demurrers to the complaint were
overruled, additional counts were inserted by amendment, and a
demurrer to them was also overruled. Thereupon the shipper, as
plaintiff, duly introduced into the evidence the Commission's
original finding and other Commission proceedings and closed its
case. The respondents, over the shipper's objection that the same
were incompetent, were permitted to put in evidence the original
pleadings before the Commission, and the testimony and other
exhibits taken and filed in the Commission's
Page 276 U. S. 388
proceedings. Thereupon, the respondents closed their case, and
the shipper duly moved for a directed verdict, which motion was
overruled by the district court and an exception noted. The
respondents thereupon moved for a directed verdict, which motion
was granted, and the shipper duly excepted.
A writ of error to the Circuit Court of Appeals for the Fifth
Circuit was then duly taken. The exhibits filed by the respondents
were exceedingly voluminous, there being, among other things, a
complete file of embargo circulars included as a part of the
evidence which had been placed before the Commission in the
hearings before it. The defeated party was anxious to avoid the
printing of exhibits which it did not deem of use to the reviewing
court in passing on what it considered the only issue in the case,
and attempted to secure this through stipulation of counsel and by
an order of court. When the case reached the circuit court of
appeals, it declined to pass upon the merits of the case for the
following reason:
"From the above it is plain that all of the evidence upon which
the case was tried is not in the bill of exceptions. The order of
court sending up the documents in the original does not purport to
make them a part of the bill of exceptions, the rule of this Court
could not incorporate them therein, and the agreement of counsel
expressly excludes them."
"As applicable to the deficiency of the record here shown, the
well settled rule is this. Depositions, exhibits, or certificates
not contained in the bill of exceptions cannot be considered even
though found in the printed transcript. The parties, by their
affidavits or agreements, cannot cause that to become a bill of
exceptions which is not such in a legal sense. Where instructions
of the court are assigned as error on a motion to direct a verdict
or otherwise, unless the entire evidence pertinent to the
Page 276 U. S. 389
question is in the bill, the appellate court must presume that
the omitted evidence justified the instruction."
Except as modified by statute, the rules as to bills of
exceptions in the federal courts are the same as they were at
common law. By § 17 of the Judiciary Act of 1789, ch. 20, 1 Stat.
73, 83, all the courts of the United States were given power to
grant new trials in cases where there had been a trial by jury, for
reasons for which new trials had usually been granted in the courts
of law. This was held to adopt the common law rule on the subject.
Parsons v.
Bedford, 3 Pet. 433. Prior to the statute of
Westminster II, 13th Edw. I, ch. 31, a writ of error at common law
could be had only for an error apparent on the face of the record
or for an error in fact such as the death of a party before
judgment, but by that old statute, which is now to be treated as
common law, it was provided that exceptions might, by bills of
exceptions, be made a part thereof and so be reached by the writ of
error. In this way, so much of the facts of the case as were
necessary to make plain the question of law on which the exception
was founded were incorporated in the record, but the trial justice,
as a witness to the bill, had to put his seal to the instrument
and, in the reviewing court, might be commanded to appear at a
certain date either to confess or deny his seal, and then, if he
could not deny his seal, the court of review proceeded to judgment
according to the same exception as it ought to be allowed or
disallowed.
Nalle v. Oyster, 230 U.
S. 165,
230 U. S.
176-177;
Duncan v. Landis, 106 F. 839, 844;
Defiance Fruit Co. v. Fox, 76 N.J.Law, 482, 489.
By the Act of June 1, 1872, ch. 255, 17 Stat. 196, 197, it was
provided that a bill of exceptions allowed in any cause should 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
Page 276 U. S. 390
at the trial of the cause, without any seal of the court annexed
thereto, and this became § 953 of the Revised Statutes. Since the
passage of that Act, it is not necessary to seal a bill of
exceptions.
Herbert v. Butler, 97 U. S.
319,
97 U. S. 320;
Malony v. Adsit, 175 U. S. 281,
175 U. S. 285,
but the signature is still necessary.
Origet v. United
States, 125 U. S. 240;
United States ex rel. Kinney v. United States Fidelity &
Guaranty Co., 222 U. S. 283.
Strict requirements are thus insisted on so as to make certain
that the reviewing court shall have before it an accurate account
of the evidence or exhibits which were before the trial court in
the original hearing of the issues of the case properly
certified.
The same strictness prevails as to including in the bill the
evidence upon which reliance is had to justify the exception, if
not included in the original record. In many cases, the error
complained of rests on a negative showing that there was no
evidence adduced at the trial upon which the ruling of the court
complained of could be predicated. If a motion is made in the trial
court to take the case from a jury or other factfinding tribunal,
and direct a verdict or give judgment on the ground that, as a
matter of law, only one verdict or judgment can be reached, it must
appear that in the bill of exceptions is contained all the evidence
actually adduced before the trial court. It has always been ruled
in such a case that, if the bill of exceptions does not contain all
the evidence, it will be presumed that the evidence omitted was
sufficient to justify a refusal to grant the motion.
Russell v.
Ely, 2 Black 575,
67 U. S. 580;
City of Providence v.
Babcock, 3 Wall. 240,
70 U. S. 244;
Grand Trunk Railway Co. v. Cummings, 106 U.
S. 700,
106 U. S.
7016;
Texas & Pacific Railway Co. v. Cox,
145 U. S. 593,
145 U. S. 606;
Hansen v. Boyd, 161 U. S. 397,
161 U. S. 403;
United States v. Copper Queen Mining Co., 185 U.
S. 495,
185 U. S. 498;
Nashua Savings Bank v. Anglo-American Co., 189 U.
S. 221,
189 U. S. 231.
By
Page 276 U. S. 391
this, it is not meant that the evidence shall be set forth at
length in the words of the witnesses, and of the writings and
documents admitted, but only that the purport and substance of all
of it be included. In setting it forth, regard should be had to the
requirements of paragraph 2 of Rule 7 of the Rules prescribed by
this Court. 266 U.S. 653.
Lincoln v.
Claflin, 7 Wall. 132,
74 U. S. 136;
Zellers' Lessee v.
Eckert, 4 How. 289,
45 U. S.
297-298.
The question here arises because of the alleged omission of
certain exhibits from the bill of exceptions which the petitioner
contended were not relevant to the issue between them. Because of
this, the circuit court of appeals, of its own motion, and not by
request or consent of either party, applied the rule above stated.
We do not think, however, that the bill of exceptions can be said
to have omitted these exhibits or to have prevented the circuit
court of appeals from considering them with all the evidence. The
bill of exceptions recites that, in the trial, both parties
appeared by counsel, the jury was impaneled, and that there were
introduced in evidence by the plaintiff Exhibits 1, 2, 3, 4, 5, and
6, all as described; that they were admitted subject to objection
and exception as irrelevant, and the objection was overruled, and
that the defendants offered Exhibits No. 7, No. 8, No. 9, No. 10,
No. 11, and No. 12, all as described, and as containing all the
testimony and also exhibits offered at the hearing before the
Interstate Commerce Commission, and that the plaintiff objected to
the introduction of all those exhibits from No. 7 to No. 12, and
that this objection was overruled and an exception noted. The bill
of exceptions then concluded as follows:
"The plaintiff's exhibits referred to as Exhibit No. 1, Exhibit
No. 2, Exhibit No. 3, Exhibit No. 4, Exhibit No. 5, and the
Defendants' Exhibit No. 12 are hereinafter set forth fully as a
part of this bill of exceptions. By virtue of an order of the
presiding judge, W. I. Grubb, Plaintiff's
Page 276 U. S. 392
Exhibit No. 6 and the Defendants' Exhibits Nos. 7, 8, 9, 10, and
11, respectively, are omitted from this bill of exceptions in order
that they may be sent by the clerk of the lower court, in
compliance with the said order of the presiding judge, direct to
the court of appeals."
"This was all the evidence in the case."
"(Signed) W. I. Grubb."
This was followed by the stipulation signed by the attorneys for
both plaintiff and defendants, and the order of the court; the
latter being that referred to in the bill of exceptions, as
follows:
"It appearing to the court that, in this cause, it is necessary
and proper in the opinion of the court that certain original papers
and documents should be inspected in the circuit court of appeals
upon writ of error by said court:"
"It is therefore ordered that the following papers, to-wit,
Exhibits 6 to 11, inclusive, referred to and described in the bills
of exceptions, be transmitted by the clerk of this Court to the
clerk of the circuit court of appeals at New Orleans, La. and
returned after the disposition of the writ of error to the clerk of
this Court."
"The parties to this cause by their respective counsel do hereby
stipulate and agree as follows:"
"That the Plaintiff Exhibit No. 6 and that the Defendants'
Exhibits 7, 8, 9, 10, and 11, may be omitted from the bill of
exceptions, and sent by the clerk of the trial court direct to the
court of appeals in their original form, and further that the
exhibits need not be printed in the record. This agreement is made
in conformity with an order of the trial court by the presiding
judge that said exhibits, viz., 6, 7, 8, 9, 10, and 11, shall be
omitted from the record, and sent directed by the clerk of the
trial court to the Court of Appeals."
While the rule as we have shown by its history in respect to the
inclusion of all the evidence in the bill of
Page 276 U. S. 393
exceptions must be respected, we must give the recitals of the
bill a reasonable construction.
Kleinschmidt v. McAndrews,
117 U. S. 282,
117 U. S.
2865;
Waldron v. Waldron, 156 U.
S. 361. While it may be said that the form in which this
bill of exceptions is sent up is in its parts slightly inconsistent
in itself and apparently self-contradictory, it is clear that the
bill, as signed by the trial court and read in the light of the
order which is referred to and identified in the bill, brought and
was intended to bring to the appellate court all of the evidence
heard in the court below, and all the exhibits, even those said in
it to be omitted therefrom which were
ex industria sent by
order of the court to the court above for that court's examination.
We think the references in the bill to the exhibits separately sent
by order of the trial court to the circuit court of appeals are
sufficiently identified as part of the bill. They were omitted from
the bill in the sense only that they were to be sent separately
from the rest of the bill to the reviewing court, perhaps with a
view, rightly or wrongly, to avoiding the necessity of printing
them. But the certificate of the judge certainly included them in
the bill when, after expressly referring to them, he said, "This
was all the evidence in the case." To be sure, it is well settled
that exhibits found in the record or even annexed to a bill of
exceptions, when not attached to it by way of identifying them as
intended to be part of it, cannot be treated as such.
National Bank v.
Kennedy, 17 Wall.19;
Reed v.
Gardner, 17 Wall. 409,
84 U. S. 411;
Jones v. Buckell, 104 U. S. 554;
Hanna v. Maas, 122 U. S. 24.
But, in
Leftwitch v.
Lecanu, 4 Wall. 187, on page
71 U. S. 189, Mr.
Justice Miller, while exemplifying this principle, said, in
rejecting a bill of exceptions:
"If a paper which is to constitute a part of a bill of
exceptions is not incorporated into the body of the bill,
Page 276 U. S. 394
it must be annexed to it, or so marked by letter, number, or
other means of identification mentioned in the bill as to leave no
doubt, when found in the record, that it is the one referred to in
the bill of exceptions."
And again, in
Jones v. Buckell, supra, at
104 U. S. 556,
Chief Justice Waite, in making a similar ruling, said:
"Of course, evidence may be included in a bill of exceptions by
appropriate reference to other parts of the record, and, if that
had been done here, it might have been enough."
As we have said, we think the identifying references, in the
bill, to the exhibits are sufficient.
The result is that the circuit court of appeals should have
considered the issues before it on the bill of exceptions as
containing all the evidence below, and that the dismissal for lack
of it was erroneous.
The judgment is reversed, and the cause is remanded to the
circuit court of appeals for further proceedings.
Reversed.