1. Under R.S., § 953, which provide that a bill of exception
shall be deemed sufficiently authenticated if "signed" by the
judge,
Page 288 U. S. 171
signature by his initials only is not a nullity, and the
irregularity may be disregarded or cured by amendment, under R.S.,
§ 954, 28 U.S.C. 777 and 391, after expiration of the term. P.
288 U. S.
174.
2.
Held that there was no occasion in this case to send
the bill back for amendment, there being no doubt that it was the
judge who signed his initials, for the purpose of authentication,
and no one having been misled or injured. P.
288 U. S.
177.
57 F.2d 44 reversed.
Certiorari, 287 U.S. 586, to review judgments of the Circuit
Court of Appeals which affirmed the judgments of the District Court
solely upon the ground that the bills of exceptions had not been
properly authenticated and that it was too late to send them back
for amendment.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
In these actions at law, tried together before District Judge
James A. Lowell and a jury, respondent obtained judgments, and
petitioner appealed to the Circuit Court of Appeals. The records on
the appeals contained what purported to be bills of exceptions
signed by the attorneys for the respective parties and initialed by
the District Judge as follows: "Allowed August 20, 1930, J.A.L.,
D.J." The Circuit Court of Appeals affirmed the judgments upon the
sole ground that the bills of exceptions were not sufficiently
authenticated, and that it was too late to send the cases back for
amendment, as the term for which the judgments were entered had
expired and the District Court had lost jurisdiction. 57 F.2d 44.
This Court granted certiorari.
Page 288 U. S. 172
There is no question that District Judge Lowell affixed his
initials to the bills of exceptions and intended in this manner to
authenticate them as allowed. Apparently, in connection with
petitioner's application for a rehearing in the Circuit Court of
Appeals, Judge Lowell addressed a communication to the judges of
that court stating that the bills had been seasonably presented to
him and that he had signed them with his initials intending that
they should have full legal effect; he requested that the bills
should be returned to him for correction. [
Footnote 1] There was also submitted to the Circuit
Court of Appeals a certificate by the clerk of the District Court
in which it was stated:
"It has been the practice in this district for a long time for
judges, the clerk and deputy clerks and the bar to treat as
sufficiently allowed for appellate purposes bills of exceptions
signed by the trial judge with either his full name or his
initials."
The petition for rehearing was denied.
Under the statute of Westminster 2, 13 Edw. I, ch. 31, it was
essential that exceptions should be authenticated by the seal of
the trial justice.
Enfield v. Hills, 2 Lev. 236; 2 Inst.
427, 428; 2 Bac. Abr., 326, 327; 2 Tidd's Pr., 789;
Nalle v.
Oyster, 230 U. S. 165,
230 U. S. 176;
Krauss Bros. Co.
v.
Page 288 U. S. 173
Mellon, 276 U. S. 386,
276 U. S.
389-390. In the practice of the federal courts, however,
it was held that a seal was unnecessary, the signature of the trial
judge being sufficient.
Generes v.
Campbell, 11 Wall. 193,
78 U. S. 198;
Herbert v. Butler, 97 U. S. 319,
97 U. S. 320.
Compare 73 U. S.
Cavazos, 6 Wall. 355,
73
U. S. 363;
Young v.
Martin, 8 Wall. 354,
75 U. S. 357.
The Act of June 1, 1872, c. 255, § 4 (17 Stat. 197, R.S. § 953)
expressly dispensed with the necessity of a seal, but retained the
requirement of the signature of the judge of the court in which the
cause was tried.
Herbert v. Butler, supra; Malony v.
Adsit, 175 U. S. 281,
175 U. S.
286-287;
Krauss Bros. Co. v. Mellon, supra. As
amended by the Act of June 5, 1900, c. 717 (31 Stat. 270, 28 U.S.C.
§ 776), the statute provides for the signature of another judge of
the court in certain contingencies. [
Footnote 2]
Page 288 U. S. 174
The statute does not prescribe the form of signature. The
manifest purpose is authentication by the proper judge. In the
absence of such authentication, there is no bill of exceptions
which the appellate court may consider.
Malony v. Adsit, supra;
Metropolitan Railroad Co. v. District of Columbia,
195 U. S. 322,
195 U. S. 330;
McCuing v. Bovay, 60 F.2d 375, 376.
Compare
71 U. S.
Pridgeon, 4 Wall. 196,
71 U. S.
201-202. Appropriate disapproval of the practice of
signing by initials such important documents as bills of
exceptions, and insistence upon a method of signature more in
keeping with the formal character of the proceeding, do not reach
the question now presented. That question is not whether the
signature is informal, but whether there is a signature. If the
attempted authentication by Judge Lowell be deemed to be merely
informal or irregular, but not a nullity, the defect could be
disregarded or cured by amendment. R.S. § 954, 28 U.S.C. § 777.
See also 28 U.S.C. § 391. Thus, in
Idaho & Oregon
Land Co. v. Bradbury, 132 U. S. 509, the
clerk of the court below, in attempting to authenticate the record,
had appended the seal of the court but had failed to comply with
the rule of this Court in affixing his signature. The Court said
(p.
132 U. S.
513):
"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."
And, as it appeared to be then "too late to take a new appeal or
writ of error," the Court permitted the record to be withdrawn "for
the purpose of having the certificate of authentication perfected
by adding the signature of the clerk." A defect or inaccuracy in
mere matters of form can be corrected notwithstanding the end of
the term.
United States v. Mayer, 235 U. S.
55,
235 U. S.
67.
The Circuit Court of Appeals felt constrained to reach its
conclusion, that the attempted authentication was a nullity, by
reason of the decisions of this Court in
Origet
Page 288 U. S. 175
v. United States, 125 U. S. 240,
125 U. S.
243-244, and
Kinney v. United States Fidelity &
Guaranty Co., 222 U. S. 283,
222 U. S. 284.
Neither of these decisions is strictly in point. In the
Origet case at the foot of a paper entitled "Bill of
Exceptions" appeared the following: "Allowed and ordered on file
November 22, '83. A.B." Referring to the Act of 1872 (R.S. § 953),
the Court said:
"This provision 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 the
Kinney case, the record did not contain any bill
of exceptions. There was a paper styled "Exceptions to the Charge
to Jury," which was initialed "J. B. McP., Trial Judge," and signed
by the plaintiff. The court said that this paper was "not a bill of
exceptions," citing the
Origet case, but the court added
that, "if it were to be treated as a bill of exceptions," it could
not avail, as all the matters in question depended upon
"examination of the evidence, which is not in the record," and
hence the court had "no means of determining whether reversible
error arose from an action of the court on any of the subjects to
which the paper refers." Thus, in the
Kinney case, the
present question was not necessarily involved, and in the
Origet case, the court was unable to regard the initials
as to signature of the judge. In the instant case, it appears that
the trial judge did affix his initials in order to authenticate the
bills of exceptions, and he added the initials "D.J." for the
obvious purpose of referring to his office and characterizing his
action as official. So far as the statements in the opinions of the
Origet and
Kinney cases may be taken to imply
that such an authentication by the trial judge is void and that
bills of exceptions so allowed cannot be considered,
Page 288 U. S. 176
or the informality be corrected, the statements are not
approved.
The statute contains no indication that the word "sign" is used
in other than the ordinary sense. The statute gives neither
definition nor qualification. Signature by initials has been held
to be sufficient under the Statute of Frauds [
Footnote 3] and the Statute of Wills, and in other
transactions. [
Footnote 4] It
has been held in some states [
Footnote 5] that a different rule obtains in the case of
the official signature of certain judicial officers, but the
Congress has not established such a rule for the judges of the
federal courts. Nor, in the absence of special statutory
requirement, is there a uniform custom in relation to official
signatures. It may be assumed that a requirement of the officer's
signature, without more, means that he shall write his name or his
distinctive appellation, but the question remains as to what
writing of that character is to be deemed sufficient for the
purpose of authenticating his official act. There is no rule that
he shall adhere to the precise form of his name as it appears in
his commission. The full name of
Page 288 U. S. 177
the officer may or may not be used. Not infrequently, Christian
names are omitted in part or altogether, or are abbreviated or
indicated by initials. In some of the most important communications
on behalf of the federal government, only the surname of the
officer is used. When an officer authenticates his official act by
affixing his initials, he does not entirely omit to use his name;
he simply abbreviates it; he uses a combination of letters which
are part of it. Undoubtedly that method is informal, but we think
that it is clearly a method of "signing." It cannot be said in such
a case that he has utterly failed to "sign," so that his
authentication of his official act, in the absence of further
statutory requirement, is to be regarded as absolutely void.
We do not approve the signing of bills of exceptions merely by
the initials of the judge, but we regard the question as one of
practice, of regularity -- not of validity. In the instant cases,
the District Judge authenticated his allowance of the bills of
exceptions by a form of signature easily and actually identified as
his. No one was misled or injured. We perceive no reason why
petitioner should lose its right to have the rulings upon the trial
appropriately reviewed by the appellate court merely because the
District Judge failed to sign his full name. This is precisely the
sort of defect which the Congress has provided shall not impair the
substantial rights of the parties. 28 U.S.C. § 391. At most, in the
interest of a better practice, the bills of exceptions could have
been returned for a more formal signature, but even that course was
not necessary.
The judgments are reversed, and the causes are remanded to the
Circuit court of Appeals for hearing upon the merits.
Reversed.
[
Footnote 1]
District Judge Lowell's communication contained the
following:
"It has been called to my attention that I signed the bills of
exceptions in the above two cases with my initials only, instead of
with my full signature. They were seasonably presented to me for
allowance, and I told counsel for the Appellant presenting them,
after examination of them, that I allowed them, did nothing more
with respect to them in counsel's presence, and counsel departed. I
later signed them, intending so to sign them that they should have
their full intended legal effect but, not knowing any better, I
signed them only with my initials; that was my personal mistake, to
which neither the Appellant nor its counsel in any way contributed.
I desire, if I have the power and your permission, now to correct
my personal inadvertence by completing my signature so that my
allowance of each bill may have my full signature, and as of August
20, 1930. I therefore request, so far as I properly may, that the
record be returned to the District Court for such correction by me
as now within my power to make."
[
Footnote 2]
Section 953 of the Revised Statutes, as amended by the Act of
June 5, 1900, c. 717, 31 Stat. 270, 28 U.S.C. § 776, provides:
"A bill 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 the court or judge annexed thereto. And in case the judge before
whom the cause has heretofore been or may hereafter be tried is, by
reason of death, sickness, or other disability, unable to hear and
pass upon the motion for a new trial and allow and sign said bill
of exceptions, then the judge who succeeds such trial judge, or any
other judge of the court in which the cause was tried, holding such
court thereafter, if the evidence in such cause has been or is
taken in stenographic notes, or if the said judge is satisfied by
any other means that he can pass upon such motion and allow a true
bill of exceptions, shall pass upon said motion and allow and sign
such bill of exceptions, and his ruling upon such motion and
allowance and signing of such bill of exceptions shall be as valid
as if such ruling and allowance and signing of such bill of
exceptions had been made by the judge before whom such cause was
tried; but, in case said judge is satisfied that, owing to the fact
that he did not preside at the trial, or, for any other cause, that
he cannot fairly pass upon said motion and allow and sign said bill
of exceptions, then he may, in his discretion, grant a new trial to
the party moving therefor."
[
Footnote 3]
Salmon Falls Manufacturing Co.
v. Goddard, 14 How. 446,
55 U. S. 454;
Phillimore v. Barry, 1 Camp. 513;
Chichester v.
Cobb, 14 L.T.(N.S.) 433, 443;
Sanborn v. Flagler, 9
Allen 474, 478;
Smith v. Howell, 11 N.J.Eq. 349, 357-358;
Burns v. Burrows, 196 Iowa, 1048, 1056, 196 N.W. 62;
Browne on the Statute of Frauds (5th ed.) § 362.
[
Footnote 4]
Re Savory, 15 Jur. 1042;
Knox's Estate, 131
Pa. 220, 229-232, 18 A. 1021;
In re Estate of Kimmel, 278
Pa. 435, 440, 441, 123 A. 405;
Pilcher v. Pilcher, 117 Va.
356, 84 S.E. 667;
Merchants' Bank v. Spicer, 6 Wend. 443,
447;
Brown v. Butchers' & Drovers' Bank, 6 Hill 443,
444;
Palmer v. Stephens, 1 Denio 471, 479;
Weston v.
Myers, 33 Ill. 424, 432; Jarman on Wills (6th ed.) pp. 107,
108.
[
Footnote 5]
See Fairbanks v. Beard, 247 Mass. 8, 141 N.E. 590,;
Smith v. Geiger, 202 N.Y. 306, 95 N.E. 706;
Conery v.
His Creditors, 115 La. 807, 40 So. 173.
Compare Blades
v.Lawrence, L.R. 9 Q.B. 374.
See also 29 A.L.R.ann.
919,
et seq., 72 A.L.R.ann. 1290
et seq.