The statutes of Iowa provide a mode for taking bills of
exceptions by directing that they shall be tendered to the judge
for his signature during the progress of the trial, although judges
may, and often do, sign bills of exception
nunc pro tunc
after the trial.
Such is also the English practice under the Statute of
Westminster 2, and such is the practice recognized by this
Court.
Therefore, where a bill of exceptions was signed two years after
the trial, the Supreme Court of Iowa was right in striking it out
of the record.
Where, after verdict, a motion was made for a new trial, which
was held under a continuance, and an entry was afterwards made that
the motion was overruled and judgment entered on the verdict, but
at the time of such entry and judgment the court was not legally in
session, it was no error in the court, at a subsequent and regular
term, to treat the entry thus irregularly made as a nullity, to
decide the motion, and enter up judgment according to the
verdict.
The difference between this case and that of
Bank of the
United States v. Moss, 6 How. 31, pointed out.
A continuance, relating back, may be entered at any time to
effect the purposes of justice.
This was an action commenced in the District Court of Scott
County, in the Territory of Iowa, by Wilson against Sheppard and
others, for a breach of a contract for hiring a steamboat. It is
not necessary to state the facts in the case or any other
circumstances than those upon which the decision of this Court
turned.
On 7 October, 1841, the cause came on for trial in the District
Court of Scott County, when the jury found a verdict for the
plaintiff, and assessed his damages at $1,837.50.
A bill of exceptions, containing a recapitulation of the
evidence
Page 47 U. S. 261
upon both sides and sundry prayers to the court, is found in its
proper place in the record; but the date of its signature by the
judge is 21 December, 1843, whereas the trial took place in
October, 1841.
A motion for a new trial was made by the counsel for the
defendants upon several grounds, which it is not necessary to
specify.
In April, 1842, the court commenced in Scott County on the 4th,
and in Clinton county, in the same district, on the 11th. But on 12
April, whilst the court was in session in Clinton County, the
following entries were made in Scott County:
"JOHN WILSON v. JOHN C. SHEPPARD et al. -- Assumpsit"
"And now come the parties by their attorneys, and the defendants
move for judgment on the motion for a new trial, made and argued at
the last term of this Court in this cause, and held under
advisement until the present term."
"
Judgment"
"It is considered by the court that said defendants take nothing
by their said motion, and thereupon the plaintiff moves the court
for judgment upon the verdict rendered by the jurors aforesaid at
the last term of this court in this cause. It is therefore
considered by the court that the plaintiff recover of the
defendants the said sum of eighteen hundred and thirty-seven
dollars and fifty cents, his damages aforesaid in form aforesaid
assessed, besides his costs by him about his suit in this behalf
expended, and that execution issue therefor."
"
Appeal granted"
"And thereupon the said defendants, by their attorney, pray an
appeal, which was allowed."
Whether or not this appeal prevented the District Court of Scott
County from correcting the erroneous entry was one of the questions
before this Court.
At October term, 1842, the following proceedings took place in
the district court of Scott County:
"
Plaintiff's Motion for Judgment"
"And afterwards, to-wit, on the third day of October in the year
of our Lord 1842, the said plaintiff filed in the court aforesaid
the following motion for judgment in this cause, to-wit:"
"WILSON v. SHEPPARD AND OTHERS"
"And now, at this day, October term, 1842, comes the said
plaintiff, by Mitchell & Grant, his attorneys, and moves
the
Page 47 U. S. 262
court to enter up judgment in this cause, as of the last fall
term of this Court."
"MITCHELL & GRANT,
for Plaintiff"
"
Second Judgment"
"And afterwards, to-wit, on the 7th day of October, in the year
last aforesaid, the following proceedings were had, to-wit:"
"WILSON v. SHEPPARD AND OTHERS --
Assumpsit"
"This day came the said plaintiff, by his attorney, and it
appearing to the court that at a previous term of this Court,
to-wit, the October term, 1841, the issue previously joined in this
cause was submitted to a jury, who, after hearing the evidence and
arguments of counsel, returned into court the following verdict,
to-wit, they find the issue for the plaintiff and assess his
damages at the sum of eighteen hundred and thirty-seven dollars and
fifty cents."
"
Appeal prayed by Defendants"
"Whereupon a motion was made by the attorney for defendants for
a new trial herein, which motion was at said October term taken
under advisement by the court, and it further appearing to the
court that this court has not at any time since decided said
motion, but that said motion was continued under advisement until
the present term, that the order of continuance at last term was
not entered of record. It is therefore ruled that said order of
continuance be entered '
nunc pro tunc,' and the court,
having now fully considered the said motion for a new trial, doth
overrule the same. And it is further considered by the court that
the plaintiff have and recover of and from the said defendants the
said sum of eighteen hundred and thirty-seven dollars and fifty
cents, his damages in manner and form aforesaid assessed, together
with his costs by him about his suit in that behalf expended, and
that a special execution against the property attached issue
therefor; thereupon the defendants prayed an appeal to the supreme
court."
To this judgment of the district court the counsel for the
defendants took a bill of exceptions with a view to carry the case
up to the Supreme Court of Iowa.
In January, 1844, the case came before the Supreme Court of
Iowa, when the counsel for Wilson moved to strike from the record,
and reject from the consideration of the court the bill of
exceptions filed and dated in December, 1843; which motion the
court sustained.
The counsel for Sheppard then moved for a mandamus, directed to
the judge of the District Court of Scott County, requiring
Page 47 U. S. 263
him to sign and seal,
nunc pro tunc, the bill of
exceptions tendered on the original trial. But the court refused to
grant the mandamus.
After some other proceedings which it is not necessary to state,
the Supreme Court of Iowa, in January, 1845, affirmed the judgment
of the District Court of Scott County.
To review this affirmance, a writ of error brought the case up
to this Court.
Page 47 U. S. 273
MR. JUSTICE GRIER delivered the opinion of the Court.
When this case was before this Court at the last term, on a
motion to dismiss the writ of error (
see 46 U. S. 5 How.
211), one of the reasons urged was
"That, Iowa having been admitted into the Union as a state since
the writ of error was brought, the act of 1838, regulating its
judicial proceedings as a territory, is necessarily abrogated and
repealed, and consequently there is no law in force authorizing
this Court to reexamine and affirm or reverse a judgment rendered
by the supreme court of the territory, or giving this Court any
jurisdiction over it."
And the Court there said
"This difficulty has been removed by an act of Congress, passed
during the present session, which authorizes the Court to proceed
to hear and determine cases of this description."
It afterwards appeared that this Court had been misinformed on
this subject, and that, by mistake, the State of Iowa had been
omitted in the Act of 22 February, 1847. Since that time (at the
present session of Congress), an act has been passed to remedy this
omission (
see Act of 22 of February, 1848), and the Court
has proceeded to hear and determine the case on the errors
assigned.
Of the numerous errors assigned in this case, but three can be
noticed as coming properly under the cognizance of this Court. The
cause was originally tried before the District Court of Scott
County and removed by writ of error to the Supreme Court of the
Territory of Iowa. That court struck from the record the bills of
exceptions alleged to have been taken on the
Page 47 U. S. 274
trial in the court below. Consequently the matters said to be
contained in those bills are not before this Court.
But bills of exceptions were taken by the plaintiffs in error to
the ruling of the Supreme Court of Iowa, in rejecting the bills
sealed by the district court and in refusing to grant a mandamus to
the judge of the district court to sign a bill of exceptions
nunc pro tunc, and this rejection and refusal are now
assigned for error in this Court. It has been questioned whether
the action of the Supreme Court of Iowa on these points is the
proper subject of a bill of exceptions, or can be reviewed in this
Court. But as we perceive no error in the course pursued by the
court, it will be unnecessary to notice these objections.
The case was tried in the District Court of Scott County at
October term, 1841, and the bill of exceptions which was struck
from the record was dated on 21 December, 1843. It did not purport
to have been taken on the trial, nor was there any evidence on the
record that any exceptions were taken or noted by the judge. And
assuming the fact, as stated by the counsel for the defendant
below, that he had taken the exceptions during the trial and had
reduced them to form afterwards, yet the bill was not settled
during the term in consequence of objection made to certain matters
therein by the opposite counsel, and the judge, though he signed a
bill two years after the trial, refused to sign it
nunc pro
tunc, as if taken on the trial.
The act of assembly of Iowa regulating the practice of their
courts provides that
"If during the progress of any trial in any civil cause either
party shall allege an exception to the opinion of the court and
reduce the same to writing, it shall be the duty of the judge to
allow said exceptions and to sign and seal the same, and the said
bill of exceptions shall thereupon become a part of the record of
such cause, and if any judge of the district court shall refuse to
allow or sign such bill of exceptions tendered, and the same is
signed by three or more disinterested bystanders or attorneys of
said court, the judge shall then permit the said bill to be filed
and become a part of the record; if the judge refuse, the supreme
court of the territory may, when such cause is brought before them
by writ of error or appeal, upon proper affidavit of such refusal,
admit such bill of exceptions as part of the record."
This act requires that the exceptions must be taken during the
progress of the trial, reduced to writing, and tendered to the
judge, and gives ample remedy to the party injured in case of a
refusal to sign them or permit them to be made a part of the
record. If the party does not avail himself of the remedy
Page 47 U. S. 275
given him by the act, he has no one to blame but himself. It is
true, judges may and often do sign bills of exception after the
trial
nunc pro tunc, the bills being dated as if taken on
the trial; but the propriety of their refusal to do so on
particular occasions depends on so many circumstances which cannot
appear on the record and are known only to themselves that we ought
not to presume they have acted improperly in the exercise of their
discretion. Certainly a judge ought not to be called on to make up
a bill of exceptions two or more years after a trial, where the
counsel have disagreed as to the facts and failed to settle the
exceptions at the term in which the cause was tried. It is too
plain for argument also that a bill purporting to be taken more
than two years after the trial cannot properly be made a part of
the record by any possible construction of this act. It is much
more stringent in its requirements as to the time and mode in which
a bill of exceptions shall be obtained and placed on record, than
the Statute of Westminster 2, which first gave the bill of
exceptions. Yet under that statute, the courts have always held
that the exception should be taken and reduced to writing at the
trial. Not that they need be drawn up in form, but the substance
must be reduced to writing whilst the thing is transacting. 1
Bacon's Abr., tit. Bill of Exceptions.
The practice is well settled, also, by the decisions of this
Court.
See Ex Parte Martha
Bradstreet, 4 Pet. 106; and the case of
Walton v. United
States, 9 Wheat. 657, which is precisely parallel
with the present. There the objection was made that the bill of
exceptions was not taken at the trial, but purported on its face,
as in this case, to have been taken and signed after judgment
rendered in the cause. "It is true," say the court,
"that the bill of exceptions states that the evidence was
objected to at the trial; but it is not said that any exception was
then taken to the decision of the court. So that in fact it might
be true that the objection was made, and yet not insisted upon by
way of exception. But the more material consideration is that the
bill of exceptions itself appears, on the record, not to have been
taken at all until after the judgment. It is a settled principle,
that no bill of exceptions is valid which is not for matter
excepted to at the trial. We do not mean to say that it is
necessary (and in point of practice we know it to be otherwise)
that the bill of exceptions should be formally drawn and signed
before the trial is at an end. It will be sufficient if the
exception be taken at the trial, and noted by the court with the
requisite certainty, and it may afterwards, during the term,
according to the rules of the court, be reduced to form, and signed
by the judge. And so, in fact, is the general
Page 47 U. S. 276
practice. But in all such cases, the bill of exceptions is
signed
nunc pro tunc, and it purports on its face to be
the same as if actually reduced to writing during the trial. And it
would be a fatal error if it were to appear otherwise; for the
original authority under which bills of exceptions are allowed has
always been considered to be restricted to matters of exception
taken pending the trial, and ascertained before verdict."
These cases are conclusive as to the correctness of the
proceedings of the supreme court of Iowa, in striking out the bill
of exceptions and refusing to award a mandamus to compel the
district judge to sign a bill
nunc pro tunc. It will be
unnecessary, therefore, for this Court to express any opinion on
the questions, whether, under the peculiar provisions of the
statute of Iowa, a party who had neglected to pursue the course
pointed out by it would be entitled, under any circumstances, to
the remedy of a mandamus; and if so, whether a refusal by the
supreme court to grant it could be alleged for error in this
Court.
The only other assignments of error which can be noticed by this
Court are those numbered 11 and 12:
"That the supreme court erred in affirming the action of the
district court in regard to the judgment of April 12, 1842, on the
ground that the supersedeas bond did not appear on the record with
the writ of error. And in affirming the judgment rendered by the
district court at October term, 1842."
To understand the nature of these objections, it will be proper
to state that this case was tried in the district court of Scott
County, at October term, 1841, and a verdict rendered for the
plaintiff; and the defendants having moved for a new trial, the
case was continued under a
curia advisare vult. Owing to a
mistake (the cause of which it is unnecessary to explain), the
court did not meet at the time appointed by law for the April term
in Scott County, but on the week following, which had been fixed
for the term of a neighboring county. On 12 April, 1842, an entry
was made on the record overruling the motion for a new trial and
rendering a judgment on the verdict. The mistake was soon after
discovered, and the defendants sued out a writ of error to reverse
this judgment as being
coram non judice; but before the
writ was served, at the next regular term of the district court, in
October, 1842, that court, treating the entry made on the record in
April as a nullity because entered by the clerk without any
authority from the court, made the following entry of judgment:
"This day came the said plaintiff, by his attorney, and it
appearing to the court that at a previous term of this Court,
to-wit, the October term, 1841, the issue previously joined in
this
Page 47 U. S. 277
cause was submitted to a jury, who, after hearing the evidence
and arguments of counsel, returned into court the following
verdict, to-wit, they find the issue for the plaintiff, and assess
his damages at the sum of $1,837.50; whereupon a motion was made by
the attorney for the defendants for a new trial herein, which
motion was, at said October term, taken under advisement by the
court. And it further appearing to the court that this Court has
not at any time since decided said motion, but that said motion was
continued under advisement until the present term, that the order
of continuance at last term was not entered of record, it is
therefore ruled that said order of continuance be entered
nunc
pro tunc. And the court, having now fully considered the said
motion for a new trial, doth overrule the same, and it is further
considered by the court that the plaintiff have and recover,"
&c. (completing the entry of a judgment in the usual
form).
In this action of the court we can see no error or any just
ground of complaint on the part of the plaintiffs in error. If the
court had ordered the prior entry, made in April, to be stricken
from the record as a mistake or misprision of the clerk, being made
without the authority or order of the court, the record could not
have been successfully assailed. The court certainly had full power
to amend their records, and are the sole judges of the correctness
of the entries made therein, and although it has not said in direct
terms that this entry should be erased or stricken from the record,
it has done so by violent implication when it adjudged that the
court had never decided the motion for a new trial, and treated the
record as if the entry of 12 April was not upon it or had been
entirely erased from it. The objection that the record was beyond
the reach of amendment because the writ of error had become a
supersedeas and removed it to the supreme court is not founded in
fact. The writ of error had not been served on the court, and the
record was therefore legally, as well as physically, in possession
of the district court and subject to amendment. In order to a
supersedeas, the statute of Iowa evidently requires a service of
the writ upon the court below, and not only so, but
"that one of the judges of the supreme court shall endorse upon
the transcript of the court below allowance of said writ of error
for probable cause, and in such cases the party issuing such writ
shall give bond to the opposite party, with good security,"
&c. There is no evidence on the record, that any of these
requisites had been complied with.
It is perhaps hardly necessary to state that this case bears no
resemblance to that of
United States Bank v.
Moss,
Page 47 U. S. 278
decided at this term. There, the circuit court had set aside a
regular valid judgment entered by the court at a former term after
a verdict and trial on the merits; not on the ground that the clerk
had made the entry by mistake or without proper authority from the
court, but because of some supposed error in law. This case
exhibits a question of amendment, and nothing more; it was
therefore wholly within the discretion of the court below, which
was acquainted with all the facts and belonged appropriately and
exclusively to them.
Matheson v.
Grant, 2 How. 263,
43 U. S. 284.
Besides, the action of the court wrought no injury to the
plaintiffs in error. If they had removed the record to the supreme
court by the first writ of error before this amendment was made,
and obtained a reversal of the judgment because it was entered
without the authority of a properly constituted court, the supreme
court would have remitted the record with orders to proceed and
enter a regular judgment on the verdict.
The objection that the court below could not make this amendment
for want of a continuance is hardly worthy of notice. The entry of
C. A. V. operates as a continuance, and if it did not, a
continuance could be entered at any time to effect the purposes of
justice. Such technical objections have long ceased to be of any
avail in any court, and are entirely cut off by the statute of
jeofails of Iowa of 24 January, 1839, section 6.
The judgment of the supreme court of Iowa must be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the Territory of Iowa and was argued by
counsel. On consideration whereof it is now here ordered and
adjudged by this Court that the judgment of the said supreme court
in this cause be and the same is hereby affirmed with costs and
damages at the rate of six percentum per annum.
