No question is presented for the decision of this Court by a
bill of exceptions which does not state any rulings in matter of
law, or any exceptions to such rulings, otherwise than by referring
to an exhibit annexed, containing the whole charge of the court to
the jury, and notes of a conversation ensuing between the judge and
the counsel of both parties as to the meaning and effect of the
charge, interspersed with remarks of either counsel that he
excepted to that part of the charge which bore upon a certain
subject or to the refusal of the court to charge as orally
requested in the course of that conversation.
When a bill of exceptions is so framed as not to present any
question of law in a form to be revised by this Court, the judgment
must be affirmed.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This action was brought by Maas and others, citizens of
Marquette, in the State of Michigan, against Hanna and others,
commission merchants and citizens of Cleveland, in the State of
Ohio, upon this contract, signed by the defendants, and addressed
to the plaintiffs' agent:
"MARQUETTE, MICH., August 22, 1874"
"We will advance $25.25 per ton on 500 to 1,000 tons [increased
by supplemental contract to 2,000 tons] Michigan charcoal pig-iron
when delivered at Cleveland."
At the trial, the plaintiffs introduced evidence tending to
prove that such iron, on which the plaintiffs had advanced $20 a
ton, was delivered by them to the defendants on the faith of this
contract, and was afterwards sold by the defendants
Page 122 U. S. 25
for less than the amount of the plaintiffs' advances, and the
plaintiffs recovered a verdict for the difference, amounting to
$9,120.52. A motion by the defendants for a new trial was
overruled, and judgment entered on the verdict, and the defendants
sued out this writ of error.
The bill of exceptions, signed by the presiding judge, begins by
stating that the parties respectively introduced the evidence shown
in an exhibit annexed and marked "A." That exhibit appears to
contain a report of all the evidence introduced at the trial, with
minutes that certain parts of it were objected to. The bill of
exceptions then, without even stating that exceptions were taken to
the admission of any of the evidence, proceeds and concludes as
follows:
"And, neither party having offered or given further testimony,
the cause was argued by counsel, and thereupon the court charged
the jury as set forth in the annexed exhibit, marked 'Charge,' and
refused to charge as therein set forth, to which charges and
refusals to charge the defendant at the time excepted, as set forth
in said exhibit, and thereupon, after verdict and within the time
fixed by the court, the defendant filed his motion for a new trial,
which was heard and overruled by the court, to which ruling the
defendant at the time excepted, and the court entered judgment upon
the said verdict. Thereupon the defendant requested the court to
sign and seal this his bill of exceptions, which is here
accordingly done within the time limited by the court."
The exhibit marked "Charge," in the transcript sent up to this
Court, consists of three closely printed pages, setting forth the
whole charge of the judge, followed by as many more pages
containing what appear to be a stenographer's notes of a
conversation ensuing between the judge and the counsel of both
parties as to the meaning and effect of the charge already given to
the jury, but interspersed with remarks of either counsel that he
"excepted" or "desired to note" or "to preserve" an exception to
that part of the charge which bore upon a certain subject, or to
the refusal of the court to charge as orally requested by counsel
in the course of that conversation.
Page 122 U. S. 26
The object of a bill of exceptions is to put on record rulings
and instructions in matter of law which could not otherwise be a
subject of revision in a court of error. The excepting party, in
order to entitle himself to such revision, must not only allege
exceptions at the trial or hearing, but he must afterwards draw up
and hand to the presiding judge those exceptions in writing,
stating distinctly and specifically the rulings or instructions of
which he complains. 2 Inst. 426; Steph.Pl. (1st Amer. ed.) 111;
Turner v.
Yates, 16 How, 14,
57 U. S. 29;
Insurance Co. v.
Sea, 21 Wall. 158. If the exceptions so drawn up by
the party in writing are found to be true, they are sealed, or
often, in the practice of the federal courts, merely signed, by the
presiding judge.
Herbert v. Butler, 97 U. S.
319; Rev.Stat. § 953. Minutes of the judge or
clerk, or notes of a stenographer, cannot take the place of a bill
of exceptions, but are only memoranda by the aid of which one may
afterwards be drawn up.
Pomeroy v. Bank of
Indiana, 1 Wall. 592;
Thompson
v. Riggs, 5 Wall. 663;
Young v.
Martin, 8 Wall. 354;
Insurance Co. v.
Lanier, 95 U. S. 171. The
exceptions must be drawn up and settled in proper form in the court
below, and cannot be amended or redrafted in this Court.
Stimpson v. West Chester
Railway Co., 3 How. 553.
This bill of exceptions has been framed and allowed in disregard
of the settled rules of law upon the subject. No ruling upon
evidence is open to revision, because none appears to have been
excepted to,
Scott v.
Lloyd, 9 Pet. 418,
34 U. S. 442,
and the overruling of the motion for a new trial is not a subject
of exception.
Railway Co. v. Heck, 102 U.
S. 120. The bill of exceptions, instead of stating
distinctly, as required by law and by the fourth rule of this
Court, those matters of law in the charge which are excepted to and
those only, does not contain any part of the charge or any
exception to it, and undertakes to supply the want by referring to
exhibits annexed containing all the evidence introduced at the
trial, the whole charge to the jury, and notes of a desultory
conversation which followed between the judge and the counsel on
both sides, leaving it to this Court to pick out from those
Page 122 U. S. 27
notes, if possible, a sufficient statement of some ruling in
matter of law. But to assume to do that would be to take upon
ourselves the duty of drawing up proper bill of exceptions, a duty
which belonged to the excepting party, and should have been
performed before suing out the writ of error. This we are not
authorized to do. Our duty and authority are limited to determining
the validity of exceptions duly framed and presented.
The defendants having failed to reduce their exceptions to such
a form that this Court can pass upon them, the judgment must be
affirmed.
Suydam v.
Williamson, 20 How. 427;
Insurance Co. v.
Sea, above cited.
Judgment affirmed.