The appellee filed his petition in the circuit court of the
United States averring that he was the holder of a large amount of
bonds and coupons, secured by mortgage executed by the appellant.
He prayed for executory process.
Execution was awarded, and the appellant was ordered to pay the
amount of said bonds and coupons.
The appellant failing to pay on demand, the railroad and its
appurtenances were sold by the marshal, and the appellee became the
purchaser.
The appellant then filed his petition in the said court, in the
nature of an
audita querela -- averring that the award of
execution had been made without notice; that the executory process,
as recognized by the practice of Louisiana, could not be enforced
in the courts of the United States, and that the appellee's claim
could only be enforced on the equity side of the court.
The record showed the following entry:
"The court having duly considered the 'petition and exhibits
submitted by the petitioner in this cause, and being satisfied that
the prayer thereof cannot be granted, it is ordered and decreed
that the said petition be dismissed with costs.' Judgment rendered
June 14, 1869. Judgment signed June l8,"
1869.
"E. H. DURELL, Judge"
On motion to dismiss the writ of error,
held that this
was sufficiently formal and that it was a final judgment to which a
writ of error would lie.
The New Orleans, Opelousas, and Great Western Railroad Company
issued, on the 1st April, 1859, two thousand bonds, redeemable in
1889, for $1,000 each, with interest, payable semiannually, and to
secure the payments a mortgage was executed upon the road (eighty
miles), together with the depots and lands appertaining to them
&c.
On 23d February, 1869, Charles Morgan filed his petition
Page 77 U. S. 257
in the Circuit Court of the United States for Louisiana,
averring that he was the holder of a certain number of these bonds,
and of coupons on them overdue.
On this petition an order was made, 30 March, 1869, directing
the company to pay, on three days' notice, $316,840, and in default
of payment the mortgaged property to be seized and sold for the
whole debt.
[The reader will observe that this proceeding, known in the
Civil Code of Louisiana as executory process, is wholly
ex
parte. The mortgage is held to be in the nature of a
confession of judgment, and the judge grants the execution, upon
the application of the party, as a matter of course, upon the
production of authentic evidence of the mortgage, and bonds or
notes.]
The company, being in a great state of embarrassment, was
unable, thus summarily called on, to pay the large amount required
by the order, and a seizure of their property was made by the
marshal, and notice thereof served on the 5th April.
On the same day the company filed its bill on the equity side of
the said circuit court, asking that for causes therein assigned the
proceedings in the executory process should be stayed, and Morgan
be required to file a bill on the chancery side of the court, to
which all the creditors might be made parties &c.
The motion for the injunction on this bill was heard 27 April,
1869.
The property was advertised to be sold under a writ of seizure,
on 25 May, 1869, and it was not until the day before this sale,
to-wit, on 24 May, 1869, that the judge entered the following
order:
"For reasons orally assigned, it is ordered and decreed that the
prayer for an injunction be denied, with costs."
At the sale on the 25th May, Morgan, in the absence of the other
creditors, became the purchaser of this very large property.
Page 77 U. S. 258
On the 1st June, 1869, the company for the first time appeared
on the law side of the said circuit court, and filed its petition
in the nature of an
audita querela, averring that the
executory process could not be legally ordered without notice; that
the order was made without notice; without proper evidence and
parties; that the subject of the suit was only cognizable in
chancery &c., and prayed an award of "a writ to Charles Morgan,
expressing a willingness to hear this complaint," that the validity
of the said proceedings might be examined, and that they be
restrained and suspended by writ until a final order herein.
Exceptions were filed on the 8th June by Morgan, and on the 14th
June the following order and entry was made:
"The court having duly considered the petition and exhibits
submitted by the petitioner in this cause, and being satisfied that
the prayer cannot be granted, it is ordered and decreed that the
said petition be dismissed with costs."
"Judgment rendered 14th June, 1869. Judgment signed 18 June,
1869. "
"E. H. DURELL,
Judge"
From this judgment the present writ of error was prosecuted in
this Court.
The Judiciary Act, as most readers will remember, gives this
Court power to reexamine on writs of error, and reverse or affirm
"
final judgments in civil actions or suits" rendered in a
circuit court, where the matter in dispute exceeds the sum or value
of $2,000.
Mr. Jenckes now moved to dismiss this writ, chiefly on the
following grounds:
1. Because the record contained no bill of exceptions nor any
agreed statement of facts, nor any special verdict, demurrer to a
material pleading, or demurrer to evidence.
2. Because the judgment exhibited in the record was not a final
judgment.
Page 77 U. S. 259
Mr. Justice CLIFFORD delivered the opinion of the Court.
Two principal causes are assigned in support of the motion to
dismiss the writ of error:
1. That the record contains no bill of exceptions nor any agreed
statement of facts or any special verdict, demurrer to a material
pleading, or demurrer to evidence.
Page 77 U. S. 260
2. That the supposed judgment exhibited in the record is not a
final judgment.
Express jurisdiction is conferred upon this Court by the
twenty-second section of the Judiciary Act to reexamine, upon writ
of error, and reverse or affirm final judgments in civil actions
rendered in a circuit court where the matter in dispute, exclusive
of costs, exceeds the sum or value of two thousand dollars, whether
the same was brought there by original process or was removed there
from courts of the several states, or from a district court.
[
Footnote 1]
Such a writ of error, when issued to a circuit court, removes
the whole record into this Court, and if all the proceedings in the
suit were correct, it follows, if not from the very words of the
section, certainly from the necessary construction of the same,
that the judgment must be affirmed. [
Footnote 2]
Error may be shown in such a case by a bill of exceptions or by
a demurrer to the declaration, or a material pleading, or it may
appear by an agreed statement of facts, if made a part of the
record, or in a special verdict, if put in due form; but even when
all these are wanting it is no cause for dismissing the suit,
because the writ of error issued to a circuit court under that
section brings up the whole record, and their absence only shows
that there is no error in the proceedings; and if there is no error
in any part of the record the prevailing party in the circuit court
is entitled to an affirmance of the judgment. [
Footnote 3]
Cases brought here by writ of error to a state court, issued
under the twenty-fifth section of the Judiciary Act, stand upon a
very different footing, as in such a case it must appear on the
face of the record in express terms or by necessary implication,
that someone, at least, of the questions described in that section
did arise in the state court, and that the question so appearing in
the record was decided in the state court, as required in that
section; and if it does not so appear in the record, then this
Court has no jurisdiction
Page 77 U. S. 261
of the case, and in that event the writ of error must be
dismissed, as this Court, under those circumstances, has no power
either to reverse or affirm the judgment rendered in the state
court. [
Footnote 4]
Certain errors in judicial proceeding can only be examined in an
appellate court when they are shown by a bill of exceptions -- as
where proper testimony is rejected or where improper testimony is
admitted -- but there may be error in the proceedings of a
subordinate court apparent in the record for which the judgment
will be reversed in an appellate tribunal, although they are not
shown by a bill of exceptions and do not appear in an agreed
statement of facts or by demurrer or in a special verdict -- as
where the original process was unauthorized by law, or where the
defendant was not served with process, or where the proceedings
under the process were irregular and void. Such were the rules of
the common law, and they have been adopted and applied in this
Court in repeated cases. [
Footnote
5]
Whatever the error may be and in whatever stage of the cause it
may have occurred, it must appear in the record or proceedings, as
before explained, or be shown by a bill of exceptions, agreed
statement of facts, demurrer, or special verdict. [
Footnote 6]
Two thousand bonds for the sum of one thousand dollars each
were, on the first of April, 1859, issued by the plaintiffs in
error, falling due in thirty years, with interest at eight percent
payable semiannually in coupons for the proper amount. Their road
was completed at that time from Algiers, opposite the city of New
Orleans, to Berwick Bay, a distance of eighty miles, and they
mortgaged the same, together with the roadbed of the main track and
branches
Page 77 U. S. 262
and the depots and the lands appertaining thereto, to secure the
payment of the bonds. On the twenty-third of February, 1869,
Charles Morgan filed his petition in the circuit court, averring
that he was the holder of a certain number of these bonds and of a
large number of coupons which were past due, and an order was made
on that petition, on the thirtieth of March following, that the
corporation plaintiffs, on three days' notice, pay to the
petitioner, the defendant in error, two hundred and sixteen
thousand dollars, and the cost of the proceedings, and that in
default of such payment the mortgaged property might be seized and
sold according to law for the whole of the debt secured by the
mortgage. Payment, as thus summarily ordered, was not made, and
thereupon a writ of seizure was issued by the court, and the whole
of the mortgaged property was seized by the marshal and sold, and
the petitioner became the purchaser of the same at the sale.
It is contended by the plaintiffs that the process and all the
proceedings in the circuit court were irregular and void and that
the same should be set aside, but the court will not determine that
question at this stage of the controversy, because it is clear that
if the views of the plaintiffs are correct and the judgment is a
final one, it must be reversed. Questions of reversal or affirmance
appertain to the merits of the controversy, and will not be
determined upon a motion to dismiss.
But the defendant insists that the judgment is not a final one,
and that the writ of error should be dismissed on that ground.
On the first of June, 1869, the plaintiffs for the first time
appeared on the law side of the circuit court, and filed their
petition in the nature of an
audita querela, averring that
the executory process could not be legally ordered without notice;
that the order was made without notice and without proper evidence
and parties; that the subject of the suit was only cognizable in
equity, and prayed that the validity of said proceedings may be
examined, and that they be restrained and suspended by a writ until
a final order herein.
Page 77 U. S. 263
Hearing was had on the petition and the court having duly
considered the petition and exhibits submitted by the petitioner in
this cause, and "being satisfied that the prayer thereof cannot be
granted, it is ordered and decreed that the said petition be
dismissed with costs."
Judgment rendered June 14, 1869. Judgment signed June 18,
1869.
The forms of verdicts and judgments, it is true, are not
controlled, even in Louisiana, by the state law, but there must be
some variation from the form of a judgment as at common law to
render it appropriate to the form of the process adopted in that
circuit. Common law suits as well as suits in equity are commenced
in that court by petition, and the judgment in this case is in a
form not unusual in that court. It is called a judgment in the
record and treated as such by the court and the parties, and in our
opinion the writ of error ought not to be dismissed for either of
the reasons assigned in the motion.
Motion denied.
[
Footnote 1]
1 Stat. at Large 84.
[
Footnote 2]
Taylor v.
Moreton, 2 Black 484.
[
Footnote 3]
Minor v.
Tillotson, 1 How. 287;
Stevens v.
Gladding, 19 How. 64.
[
Footnote 4]
Suydam v.
Williamson, 20 How. 440;
Taylor
v. Moreton, 2 Black 483; 1 Stat. at Large 85.
[
Footnote 5]
Slacum v.
Pomeroy, 6 Cranch 221;
Garland v.
Davis, 4 How. 131;
Bennet v.
Butterworth, 11 How. 669;
Cohens v.
Virginia, 6 Wheat. 433 [argument of counsel -- omitted];
Suydam v.
Williamson, 20 How. 433.
[
Footnote 6]
1 Chitty on Pleading, 431; 1 Tidd's Practice 586;
United States v.
Eliason, 16 Pet. 291.
