1. The Court expresses itself as disposed to hold parties who,
under the act of March 3, 1865, waive a trial by jury and
substitute the court for the jury, to a reasonably strict
conformity to the regulations of the act if they desire to save to
themselves all the rights and privileges which belong to them in
trials by jury at the common law.
Page 76 U. S. 426
2. Accordingly, in a case where there was no stipulation filed
for the waiver of a jury, and where the judge had filed his
"statement of facts" three months after the date of the judgment
rendered -- which statement, so irregularly filed, the court
regarded as a nullity -- and no question of law was to be
considered as properly raised on the pleading, the court stated
that, according to the general course of proceeding in former like
cases, the judgment below should be affirmed.
3. However, in this case -- one from Louisiana -- it being
apparent that both parties supposed that it case had been made up
according to the practice of that state, but one not having been
made up by the court nor properly filed according to the
requirements of the statute, so that from that cause the case,
which it was meant by both court and parties to get here, could not
be properly passed upon, the judgment, under the circumstances (the
case being an important one) was not affirmed, but was reversed for
mistrial and remanded for a new trial.
The 4th section of an Act of Congress of March 3, 1865,
[
Footnote 1] thus enacts:
"Issues of fact in civil cases in any circuit court of the
United States may be tried and determined by the court without the
intervention of a jury whenever the parties or attorneys of record
file a stipulation in writing with the clerk of the court waiving a
jury. The finding of the court upon the facts, which finding may be
either general or special, shall have the same effect as the
verdict of the jury. The rulings of the court in the cause, in the
progress of the trial, when excepted to, at the time, may be
reviewed by the Supreme Court of the United States upon a writ of
error or upon appeal, provided the rulings be duly presented by a
bill of exceptions. When the finding is special, the review may
also extend to the determination of the sufficiency of the facts
found to support the judgment."
This statute being in force, Tweed brought suit in the court
below against Flanders to recover damages, some $40,000, for the
seizure and detention of a quantity of cotton in New Orleans. He
had previously procured the possession of it by a writ of
sequestration, according to the practice of the courts in that
state. The petition charged that the defendant
Page 76 U. S. 427
was a deputy general agent of the Treasury Department of the
United States. The defendant pleaded admitting that he was a deputy
general agent as described in the petition, and denied all the
other allegations of it. A large amount of evidence was taken in
the case on both sides, the plaintiff insisting that he bought the
cotton at private sale from the individual owners and the defendant
that it was at the time under seizure and in his possession as
special agent of the Treasury Department, holding it for the use of
the government. This evidence and the proceedings of the court
occupied about a hundred pages of the record. The court gave
judgment against the defendant for $36,976.33. The judgment was
rendered 26th February, 1868. A statement of facts by the judge was
found in the record, filed May 29, 1868, nearly three months after
the date when the judgment was rendered. This finding of the facts
began by stating that
"the cause came on to be tried on the pleadings, by consent of
the parties, by the judge presiding; and after hearing the evidence
therein, and the argument of counsel, the court finds the following
facts."
This statement of the facts by the judge was the only evidence
relied on of the consent of the parties to waive a jury, except
what might be presumed from the circumstance that both parties
proceeded with the trial before the judge without objection in the
court below.
The case being brought by Flanders, the defendant below, on
error to this Court.
Page 76 U. S. 428
MR. JUSTICE NELSON delivered the opinion of the Court.
The statement of facts by the judge is filed upon the 29th May,
1868, nearly three months after the rendition of the judgment. This
is an irregularity for which this Court is bound to disregard it,
and to treat it as no part of the record. The statement made out of
court is, of course, no evidence before us of the facts stated, and
this is the only evidence relied on, of the consent of the parties
to waive a jury, except what may be presumed from the circumstance
that both parties proceeded with the trial before the judge without
objection in the court below. The objection is now taken here by
the plaintiff in error.
It is impossible to misunderstand the condition upon which,
according to the act of March 3, 1865, the parties are authorized
to waive a trial by jury, and substitute the court, and, at the
same time, save to themselves all the rights and privileges which
belong to them in trials by jury at common law. That condition is
the filing with the clerk a written stipulation, signed by the
parties, or their attorneys.
Page 76 U. S. 429
The necessity of this law, for the purpose designed, will appear
by a reference to a few of the decisions of this Court. One of the
latest is the case of
Campbell v. Boyreau. [
Footnote 2] It came up on error from the
Circuit Court of the United States for the Northern District of
California, and was an action of ejectment before the court, the
jury having been waived by the express agreement of the parties.
The opinion was delivered by THE CHIEF JUSTICE. He observed:
"It appears by the transcript that several exceptions to the
opinion of the court were taken at the trial by the plaintiffs in
error -- some to the admissibility of evidence, and others to the
construction and legal effect which the court gave to certain
instruments in writing. But, it is unnecessary to state them
particularly, for it has been repeatedly decided by this Court
that, in the mode of proceeding which the parties have seen proper
to adopt, none of the questions, whether of fact or of law, decided
by the court below, can be reexamined and revised in this Court
upon a writ of error."
He also observed:
"The point was directly decided in
Guild v. Frontin,
[
Footnote 3] which, like the
present, was a case from California, where a court of the United
States had adopted the same mode of proceeding with that followed
in the present instance; and the decision was again reaffirmed in
the case of
Suydam v. Williamson and others, [
Footnote 4] and also in the case of
Kelsey v. Forsyth, decided at the present term. [
Footnote 5]"
He then states the grounds of these decisions, namely,
"That by the established and familiar rules and principles which
govern common law proceedings, no question of law can be reviewed
and reexamined in an appellate court upon a writ of error (except
only where it arises upon the process, pleadings, or judgment, in
the case), unless the facts are found by a jury, by a general or
special verdict, or are admitted by the parties upon a case stated
in the nature of a special verdict, stating the facts, and
referring the questions of law to the court."
The opinion contains a very full exposition of the
principles
Page 76 U. S. 430
and proceedings in the common law cases, and the departure from
them in trial of issues of fact before the court. This case, and
those referred to by the learned CHIEF JUSTICE, establish beyond
question that the act of Congress was essential in order to
preserve to the parties submitting a cause to a trial before a
court, both as to law and fact, the benefit of a review or
reexamination of questions of law in the appellate court. The act,
while it provides specially the mode of submission, takes care to
secure to the parties the right of review as it respects all
questions of law arising out of the facts found by the court,
giving to this finding the effect as if found by a jury,
preserving, at the same time, the right of exceptions to the
rulings of the court in the progress of the trial; and, when the
finding is special, a right to the appellate court to determine the
sufficiency of the facts found to support the judgment.
This act of Congress is the first one that has authorized the
parties to dispense with a jury and try the issue of fact before
the court, in respect to all the federal courts in the Union,
except two special acts, one in respect to the State of Louisiana,
in 1824, and California and Oregon in 1864. [
Footnote 6] And it is quite important to settle
the practice under it at an early day, and with a precision and
distinctness that cannot be misunderstood. The Act passed May 26,
1824, relating to the courts in Louisiana directed that the mode of
proceeding in civil causes in the federal courts in Louisiana
should be the same as the practice and modes of proceeding in the
district courts of that state, subject to certain modifications
mentioned in the act. The practice in these courts of the state was
according to civil law proceedings, and the trial of issues of fact
could take place before the court by consent of the parties. This
act, unfortunately, not prescribing the mode of procedure when a
jury was waived, and the trial before the court, as in the act of
1865, leaving the court to grope its way as best it could under the
practice in civil law proceedings, the case to come up ultimately
for
Page 76 U. S. 431
reexamination before a common law appellate tribunal, has led to
the most painful and oftentimes protracted litigation at nearly
every term since its passage, and that too not upon questions
involving the merits, but questions of mere practice. As observed
by Mr. Justice Grier in
Graham v. Bayne, [
Footnote 7]
"The very numerous cases on this subject, from
Field v.
United States [
Footnote 8]
to
Arthurs v. Hart, [
Footnote 9] show the difficulties we have had to encounter
in reconciling our modes of review to the civil code of practice as
used in the courts of Louisiana,"
and these cases have not diminished since the delivery of the
opinion in that case.
The history of the proceedings in the federal courts in
Louisiana under the act of 1824 admonishes us, if we may expect to
avoid the like difficulties and disorders under the act of 1865, to
require in all cases where the parties see fit to avail themselves
of the privileges of the act, a reasonably strict conformity to its
regulations. We have already held [
Footnote 10] that this act of 1865 applies to the federal
courts in the State of Louisiana.
A copy of the stipulation of the parties or attorneys filed with
the clerk waiving the jury should come up with the transcript in
the return to the writ of error, so that the court could see that
the act had been complied with. There having been no stipulation
nor any finding of the facts in this case and no question upon the
pleadings, it would follow according to the general course of
proceeding in like cases heretofore in this Court that the judgment
below should be affirmed. There are, however, cases which, under
very special circumstances, the Court has made an exception and has
simply dismissed the writ of error, as in the case of
Burr v.
Des Moines Company, [
Footnote 11] or has reversed the judgment below for a
mistrial and remanded it for a new trial, as in the case of
Graham v. Bayne. [
Footnote 12]
See also Guild v. Frontin.
[
Footnote 13] In the present
case, it is apparent the parties below supposed that they had made
up a case, according to the
Page 76 U. S. 432
practice in Louisiana, from the finding of the facts by the
court that would entitle them to a reexamination of it here, but as
the court did not make it up and file it as of the date of the
trial and judgment, it cannot be regarded as a part of the record,
and under the circumstances, the case being an important one and
intended to be carried up here for reexamination, we shall
Reverse the judgment for a mistrial and remand it to the
court below for a new trial.
[See supra, <|76 U.S. 125|>125,
Norris v.
Jackson.]
[
Footnote 1]
13 Stat. at Large 501.
[
Footnote 2]
62 U. S. 21 How.
223.
[
Footnote 3]
59 U. S. 18 How.
135.
[
Footnote 4]
61 U. S. 20
How. 432.
[
Footnote 5]
62 U. S. 21 How.
85.
[
Footnote 6]
13 Stat. at Large 4.
[
Footnote 7]
59 U. S. 18 How.
61.
[
Footnote 8]
34 U. S. 9 Pet.
182.
[
Footnote 9]
58 U. S. 17 How.
6.
[
Footnote 10]
Insurance Company v.
Tweed, 7 Wall. 44.
[
Footnote 11]
68 U. S. 1 Wall.
99.
[
Footnote 12]
59 U. S. 18 How.
60.
[
Footnote 13]
59 U. S. 18 How.
135.
