Where the court below rendered judgment upon a finding, and at
the next term, in the absence of any special circumstances in the
case, and without the consent of parties or any previous order on
the subject, allowed and signed a bill of exceptions, and directed
it to be filed as of the date of the trial,
held that the
bill, although returned with the record, cannot be considered here
as a part thereof.
The parties to this suit, by stipulation in writing filed with
the clerk, waived a jury, and submitted to a trial by the court,
which was had at the October Term, A.D. 1872, when the case was
taken under advisement. At the next term and on the 28th April,
1873, the court found generally for the plaintiff, whereupon
defendants moved for a new trial. This motion was continued until
the next term, when, on the 15th July, it was overruled, and
judgment entered on the finding.
On the 25th July, 1873, this writ of error, returnable on the
second Monday of October then next ensuing, was sued out and
served, and on the same day a supersedeas bond was approved and
filed. The citation was filed Aug. 4, 1873.
Down to this date, as appears by the record, a bill of
exceptions had not been signed or allowed, nor time given, either
by consent of the parties or by order of the court, to prepare one.
In this condition of the case, the court adjourned for the
term.
Page 91 U. S. 250
At the next term, on the 27th October, 1873, and after the
return day of the writ of error, a bill of exceptions was signed
and filed by order of the court, as of the 28th April, 1873. It
nowhere appears from the record that this was done with the consent
of the plaintiff or even with his knowledge. It is for errors
appearing in this bill of exceptions alone that a reversal of the
judgment is asked.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
It perhaps sufficiently appears from the bill of exceptions in
this case, if it is to be taken as a part of the record, that the
rulings complained of were excepted to in proper form at the time
of the trial, but it does not appear that the bill of exceptions
was filed, signed, tendered for signature, or even prepared before
the adjournment of the court for the term at which the judgment was
rendered. No notice was given to the plaintiff of any intention on
the part of the defendants to ask for the allowance of a bill of
exceptions, either during the term or after. No application was
made to the court for an extension of time for that purpose. No
such extension of time was granted, and no consent given.
Upon the adjournment for the term, the parties were out of
court, and the litigation there was at an end. The plaintiff was
discharged from further attendance, and all proceedings thereafter,
in his absence and without his consent, were
coram non
judice. The order of the court therefore, made at the next
term, directing that the bill of exceptions be filed in the cause
as of the date of the trial was a nullity. For this reason, upon
the case as it is presented to us, the bill of exceptions, though
returned here, cannot be considered as part of the record.
This case differs very materially from that of
United
States v. Breitling, 20 How. 253. There the bill of
exceptions was prepared during the term and presented to the court
for allowance four days before the adjournment. It was handed back
to the attorney presenting it three days before the
adjournment,
Page 91 U. S. 251
with the request that he submit it to the opposing counsel.
Delay occurred and the signature was not actually affixed until
after the term. Under the special circumstances of that case, the
signature, after the term, was recognized as proper. The particular
grounds for this ruling are not stated, but it was probably for the
reason that upon the facts stated, the consent to further time
beyond the term for the settling of the exceptions might fairly be
presumed. That case went to the extreme verge of the law upon this
question of practice, and we are not inclined to extend its
operation. It was said by this Court in
Generes v.
Bonnemer, 7 Wall. 565, that
"to permit the judge to make a statement of the facts on which
the case shall be heard here, after the case is removed to this
Court by the service of the writ of error or even after it is
issued, would place the rights of parties who have judgments of
record entirely in the power of the judge, without hearing and
without remedy."
This language is substantially adopted in
Flanders
v. Tweed, 9 Wall. 425, where it was said
"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."
As early as
Walton v. United
States, 9 Wheat. 651, the power to reduce
exceptions taken at the trial to form, and to have them signed and
filed, was, under ordinary circumstances, confined to a time not
later than the term at which the judgment was rendered. This, we
think, is the true rule, and one to which there should be no
exceptions without an express order of the court during the term or
consent of the parties, save under very extraordinary
circumstances. Here we find no order of the court, no consent of
the parties, and no such circumstances as will justify a departure
from the rule. A judge cannot act judicially upon the rights of
parties after the parties in due course of proceeding have both in
law and in fact been dismissed from the court.
The judgment is affirmed.
