Where there was an affidavit made, after verdict and judgment,
that the affiant was the real party in interest, and prayed to be
substituted for, or admitted with, the defendant, and the court
overruled the motion, an exception to this ruling will not bring up
the points which were raised at the trial. nor will it bring up the
ruling upon the motion.
Page 61 U. S. 533
Exceptions must be taken or the points reserved whilst the jury
are at the bar.
Evidence of the sale of property under certain proceedings of a
state court was properly received in the circuit court where the
proceedings of the state court were duly certified and it had
competent jurisdiction over the subject matter.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This action was brought in the Circuit Court of the United
States for the District of Illinois to recover a certain lot in the
Town of Peoria described in the plaintiff's declaration.
In that suit, Forsyth, the defendant in error, was plaintiff,
and Barton, the plaintiff in error, was the defendant, and upon the
trial, the judgment of the circuit court was in favor of the
plaintiff, Forsyth, and thereupon Barton brought the case here by
writ of error.
It appears from the record that the title was a very disputed
one, and sundry questions of much nicety and difficulty were raised
in the trial and decided by the court. But from the manner in which
the case has been brought up, none of these questions is open for
revision here, for no exception to them appears to have been taken
or reserved to Barton while the jury were at the bar.
The record shows that after the trial and after verdict and
judgment for Forsyth, Charles Ballance filed an affidavit stating
that he was the landlord of Barton and the real party in interest,
and thereupon moved the court to substitute him for Barton, as
defendant, or if in the opinion of the court that could not be
done, that he might be admitted as co-defendant with Barton, and
that Ballance might proceed with the suit in his own name. But the
court overruled the motion, and refused to permit said Ballance to
become a defendant in the suit.
"
To all which decisions, rulings, and instructions,
defendant then and there excepted, and prayed that this bill of
exceptions be sealed, signed, and made a record, which is
done."
And this has been relied on here as an exception to all the
points which the transcript shows to have been raised at the trial
and decided by the court. But this is no valid exception to
anything, according to the well settled and established principles
of law. It has been repeatedly ruled by this Court, as will appear
by the cases reported, that no instruction to the jury, given or
refused by the court below, can be brought here for revision by
writ
Page 61 U. S. 534
of error unless the record shows that the exception to it was
taken or reserved while the jury were at the bar.
This is required by the statute which authorized the exception,
and cannot be dispensed with. If the party does not reserve the
exception at the time at which the law requires it to be done, he
acquiesces in the decision, and cannot bring up the point upon writ
of error.
But in this case, the exception was not proposed to be reserved
until long after the trial was over and the verdict and judgment
had been entered, for the affidavit of Charles Ballance, upon which
his motion was made, appears to have been sworn to on the 22d of
July, 1856, after judgment, and his motion was not overruled until
August 6, on which last-mentioned day he for the first time took
his exceptions. Such an exception is clearly unauthorized by law,
and the decisions and rulings to which it refers cannot be
considered upon this writ of error.
There is but one exception legally taken, and that is upon the
admission as evidence of the legal proceeding under which the lot
in question was sold as the property of a certain Michael La Croix,
to pay his debts, and at which sale Morrison was the purchaser,
under whom Forsyth claims title.
Barton objected to the admissibility of this evidence, and the
judges of the circuit court were divided in opinion, and thereupon
the evidence was allowed to go to the jury, and the defendant
excepted. Upon this point, therefore, the plaintiff in error is
entitled to the consideration and judgment of this Court.
But we think that there was no error in admitting the evidence
objected to. The documents appear to be duly certified, and the
proceedings under which the sale was made to have been before a
court of competent jurisdiction. If there were any irregularities
or errors in the proceedings after they were instituted, they were
not open to examination in the circuit court, coming in, as they
did, collaterally as evidence of title. Being the proceedings of a
judicial tribunal which had jurisdiction over the subject matter,
the circuit court had no right to take upon itself the functions of
an appellate court and inquire whether the debts claimed were
really due from La Croix, nor whether the proceedings were
conducted and the decision rendered in good faith by the tribunal
which authorized the sale.
This being the only point legally before this Court, and there
being no error in it, the judgment of the circuit court must be
Affirmed, with costs.