In this case, a mandamus was issued commanding the judge of a
Circuit Court of the United States to settle a bill of exceptions
according to the truth of the matters which took place before him
on the trial of an action before the court, held by him and a jury,
and to sign it, when settled, he having refused to settle and sign
it on the ground that the term of the court at which the action was
tried had expired, and the time allowed for signing the bill had
expired.
The practice and rules of the state court do not apply to
proceedings taken in a circuit court of the United States for the
purpose of reviewing in this Court a judgment of such circuit
court, and such rules and practice, embracing the preparation,
perfection, settling and signing of a bill of exceptions, are not
within the "practice, pleadings, and forms and modes of proceeding"
which are required by § 914 of the Revised Statutes to
conform" as near as may be" to those "existing at the time in like
causes in the courts of record of the state."
The manner or the time of taking proceedings, as the foundation
for the removal of a case by a writ of error from one federal court
to another, is a matter to be regulated exclusively by acts of
Congress, or, when
Page 128 U. S. 545
they are silent, by methods derived from the common law, from
ancient English statutes, or from the rules and practice of the
courts of the United States.
In this case, the party tendering the bill to be settled and
signed sufficiently complied with the rules and practice of the
circuit court.
The decision in
Miller v. Ehlers, 91 U. S.
249, held not to apply to the present case.
The Court stated the case as follows:
A petition was filed in this Court by the Chateaugay Ore and
Iron Company on the 8th of October, 1888, praying this Court to
issue a writ of mandamus to the Honorable Nathaniel Shipman,
district judge of the district of Connecticut, assigned to hold,
and who held, the Circuit Court of the United States for the
Southern District of New York, to settle a bill of exceptions
according to the truth of the matters which took place before him
on the trial of an action at law it that court brought by Theodore
A. Blake against the Chateaugay Ore and Iron Company, and to sign
the same, when so settled, as of the 10th of April, 1888, that
being the day when such bill of exceptions was submitted to
him.
On the 15th of October, 1888, this Court made an order that
cause be shown by Judge Shipman and by the plaintiff in the suit on
the 12th of November, 1888, why a writ of mandamus should not issue
as prayed in the petition. The plaintiff showed cause in answer to
the petition and appeared by counsel, but no cause was shown by
Judge Shipman, although the order was served on him personally on
the 18th of October, 1888. We are therefore left without any
authoritative statement from the judge as to the grounds on which
he declined as he did to settle and sign a bill of exceptions, and
can gather those grounds only from the statements of the petition
for the writ and of the answer of the plaintiff.
There were two actions, each brought to recover the price of
goods sold and delivered by the plaintiff to the defendant, which
actions were consolidated into one. The trial was had before Judge
Shipman and a jury, which, on the 25th of January, 1888, rendered a
verdict for the plaintiff for $9,574.53. The docket minute of the
court of the proceedings after verdict,
Page 128 U. S. 546
as first entered, showed that the court then made the following
order:
"It is ordered that the defendant have forty days from January
25, 1888, within which to prepare and serve a case herein, with
leave to turn the same into a bill of exceptions. It is further
ordered that judgment may be entered on said verdict, and that the
defendant have a stay of execution until the decision of the motion
for a new trial herein."
On the 31st of January, 1888, a judgment was rendered in the
action in favor of the plaintiff for $9,665.39, being the amount of
the verdict and costs.
On the 3d of March, 1888, being the thirty-eighth day after the
25th of January, 1888, the defendant served upon the attorneys of
record for the plaintiff a proposed bill of exceptions. It was
accepted and retained by such attorneys, and the service thereof
was admitted in writing. On the 13th of March, 1888, the attorneys
for the plaintiff applied to the attorneys for the defendant for
ten days' additional time within which to prepare and serve such
amendments as they wished to make to the proposed bill of
exceptions. In doing this, they acted upon the view that their time
to prepare and serve such amendments did not expire until the 13th
of March, 1888. Their application was granted, and a stipulation
for ten days' additional time was signed by the defendant's
attorneys. On the 23d of March, 1888, the attorneys for the
plaintiff served upon the attorneys for the defendant a paper
containing seventy-seven amendments which they desired to make to
such proposed bill of exceptions. Some of such proposed amendments
were agreed to by the defendant, while others were not agreed to.
On the 27th of March, 1888, the attorneys for the defendant served
upon the attorneys for the plaintiff a notice that the proposed
bill of exceptions and proposed amendments would be presented to
Judge Shipman for settlement and signature on the 10th of April,
1888 at the United States courtrooms in the City of New York. Such
notice of settlement was received and retained without objection by
the attorneys for the plaintiff, and a written admission of the
service thereof was given by them to the attorneys for the
defendant.
Page 128 U. S. 547
On the 10th of April, 1888, the defendant appeared by its
attorneys before Judge Shipman, and moved that the proposed bill of
exceptions be settled and signed. The attorneys for the plaintiff
appeared and opposed the motion upon the ground that the term of
court at which the action was tried had expired on the 31st of
March; that the forty days' time allowed by the court within which
to prepare and serve a bill of exceptions had also expired, and
that the plaintiff was out of court, and the court had no longer
any jurisdiction over him. The motion was continued until the next
day, when, both parties again appearing, Judge Shipman announced
his decision, sustaining the objections made on behalf of the
plaintiff for the reason, then stated orally by him, that the term
of the court at which the action was tried had expired, and the
forty days originally allowed by the court had also expired, and no
order had been made, or consent given by the plaintiff or his
attorneys extending the time for signing the bill of exceptions
beyond the term at which the cause was tried, and no very
extraordinary circumstances were shown in the case to justify the
court in entertaining the application, so that, under the rule laid
down in the case of
Muller v. Ehlers, 91 U. S.
249, the application of the defendant for the settlement
and signing of the bill of exceptions must be denied.
On the denial of such motion and on the 11th of April, 1888, the
court made an order, entitled in the cause, which, after reciting
as follows:
"In this case at the October term, 1887, of this Court, after
judgment upon the verdict for the plaintiff, a stay of forty days,
and until the decision of any motion for a new trial upon a bill of
exceptions, having been granted, and the said forty days and the
said October term of this Court having passed, and no proper
foundation by bill of exceptions having been taken by the defendant
to move for a new trial,"
ordered that such stay of execution be vacated.
On the 17th of April, 1888, the court, after hearing both
parties, made an order amending the docket minute of the
proceedings after verdict, and the judgment roll founded thereon,
by striking out, in such docket minute, everything
Page 128 U. S. 548
after the words "it is ordered," and inserting the
following:
"Mr. Kellogg moves orally to set aside the verdict as against
evidence, and for a new trial, upon a bill of exceptions to be
thereafter drawn. The court overruled the motion to set aside the
verdict, and denied the same, and ordered judgment for plaintiff
upon the verdict to be entered, and that the defendant have a stay
of forty days to prepare and serve its bill of exceptions, and a
further stay until the decision of such motion for a new trial upon
said bill of exceptions."
The same order directed that the order of April 11, 1888, be
resettled and entered, with the following recital:
"In this case at the October term of this Court, and on the 25th
day of January, 1888, after verdict for the plaintiff, counsel for
the defendant having orally moved for a new trial, upon a bill of
exceptions to be thereafter drawn, and the court having then
ordered judgment for the plaintiff to be entered on said verdict,
and that a stay of proceedings upon the judgment for forty days,
and until the decision of said motion, be granted to the defendant,
and the said October term of this Court having ended on the 31st
day of March, 1888, and the said forty days having elapsed, and no
bill of exceptions having been presented to or allowed by the
court, and there being no bill of exceptions upon which said motion
for a new trial is to be based,"
and with a direction "that the said stay of proceedings so
granted be vacated and set aside."
Judge Shipman was duly designated to hold the Circuit Court for
the Southern District of New York for two weeks, beginning on the
16th of January, 1888. The session of the court held by him
terminated on the 27th of January, 1888, and during the time from
that day until the first Monday of April, 1888, which was the
second of April, when the April term of that court began, Judge
Shipman was assigned to hold no court within the Southern District
of New York, and he was not at any time between the 27th of
January, 1888, and the second of April, 1888, within the Southern
District of New York for any official purpose. A writ of error to
remove the case to this Court was allowed on a bond approved to
operate as a supersedeas, and a citation
Page 128 U. S. 549
was served. A transcript of the record was filed in this Court
on the 8th of October, 1888. The foregoing facts are stated partly
from the papers in the application for the mandamus and partly from
the contents of such record.
Page 128 U. S. 551
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
We are of opinion that the writ of mandamus must issue. By rules
67 and 69 of the Circuit Court for the Southern District of New
York, which took effect on the first Monday of August, 1838, it is
provided that when exceptions to the opinion of the court are taken
by either party on the trial of a cause, he shall not be required
to prepare his bill of exceptions at the trial, but shall merely
reduce the exceptions to writing, or the court will, on request,
note the point, and the bill of exceptions shall afterwards be
drawn up, amended, and settled, under the following
regulations:
The bill of exceptions shall be prepared, and a copy thereof
served upon the opposite party before judgment is rendered on the
verdict. The opposite
Page 128 U. S. 552
party may, within four days after such service, propose
amendments to the bill and serve a copy upon the party who prepared
it. If the parties cannot agree in regard to the amendments, then,
within four days after such service of a copy of the amendments,
either party may give to the other notice to appear within a
convenient time, and not more than four days after service of such
notice, before the judge who tried the cause, to have the bill and
amendments settled. The judge shall thereupon correct and settle
the same as he shall deem to consist with the truth of the facts,
but if the parties shall omit, within the several times above
limited, unless the same shall be enlarged by a judge, the one to
propose amendments, and the other to notify an appearance before
the judge, they shall respectively be deemed, the former to have
agreed to the bill as prepared, and the latter to have agreed to
the amendments as proposed, and if the party omit to make a bill
within the time above limited, unless the same shall be enlarged as
aforesaid, he shall be deemed to have waived his right thereto.
A corresponding practice prevails in the Supreme Court of the
State of New York, by its rules, with variations as to time. Under
those rules, a case, or a case and exceptions, or a case containing
exceptions, on a trial before a jury, is to be made, and a copy
thereof served on the opposite party, within ten days after the
trial. The party served may, within ten days thereafter, propose
amendments thereto, and serve a copy on the party proposing the
case or exceptions, who may within four days thereafter serve the
opposite party with a notice that the case or exceptions, with the
proposed amendments, will be submitted at a time and place to be
specified in the notice, not less than four nor more than twenty
days after service of such notice, to the justice before whom the
cause was tried, for settlement.
It is apparent that both parties in this case acted upon the
view that the rule of practice of the supreme court of the state
applied to the case, because the plaintiff, instead of serving on
the defendant his proposed amendments to the bill within four days
after the 3d March as required by
Page 128 U. S. 553
the rule of the circuit court, waited ten days under the rule of
the supreme court of the state, and then, on the 13th of March,
obtained a stipulation from the defendant giving ten days'
additional time to prepare and serve amendments. It may be that the
defendant, in serving, on the 27th of March, a notice of settlement
of fourteen days, for the 10th of April, on the plaintiff, intended
to comply, as it in fact did comply, with the requirement of the
rule of the state court that such notice should be a notice of not
less than four nor more than twenty days; yet it also sufficiently
complied with rule 67 of the circuit court, which required a notice
of not more than four days, because a notice of four days, served
on the 27th of March, would have been for the 31st of March, and
Judge Shipman was not then within the Southern District of New
York, so as to be able to perform any judicial act there, nor did
he come there, so as to be able to do so, until the second of
April, 1888. Under these circumstances, the notice for the 10th of
April was a reasonable compliance with the rule of the circuit
court.
We are of opinion that the practice and rules of the state court
do not apply to proceedings in the circuit court taken for the
purpose of reviewing in this Court a judgment of the circuit court,
and that such rules and practice, embracing the preparation,
perfecting, settling, and signing of a bill of exceptions, are not
within the "practice, pleadings, and forms and modes of proceeding"
in the circuit court, which are required, by § 914 of the
Revised Statutes, to conform, "as near as may be," to the
"practice, pleadings, and forms and modes of proceeding existing at
the time in like causes in the courts of record of the state"
within which the circuit court is held, "any rule of court to the
contrary notwithstanding."
This Court has had occasion several times to construe §
914. In
Nudd v. Burrows, 91 U. S. 426, a
state statute required a judge to instruct a jury only as to the
law of a case, and provided that the written instructions of the
court should be taken by the jury in their retirement, and returned
with the verdict, and that papers read in evidence might be carried
from the bar by the jury. The court charged the jury upon the
facts,
Page 128 U. S. 554
and refused to permit them to take to their room the written
instructions given by the court or papers read in evidence. This
Court held that this was not error, because the personal conduct
and administration of the judge in the discharge of his separate
functions was not practice or pleading or a form or mode of
proceeding within the meaning of those terms in the act of
Congress.
In
Indianapolis Railroad Co. v. Horst, 93 U. S.
291, a state statute prescribed that the judge should
require the jury to answer special interrogatories in addition to
finding a general verdict. This Court held that that provision did
not apply to the courts of the United States, and that the act of
Congress did not apply to a motion for a new trial, nor affect the
power of the circuit court to grant or refuse a new trial in its
discretion. This last point was again so ruled in
Newcomb v.
Wood, 97 U. S. 581.
In harmony with the foregoing decisions, we are of opinion that
section 914 does not extend to the means of enforcing or revising a
decision once made by the circuit court. Section 914 does not
extend to proceedings to enforce a judgment, because by § 916
special provisions are made, as to a remedy by execution or
otherwise, to reach the property of a judgment debtor by borrowing
from the laws of the state only those remedies then already
existing or which should thereafter be adopted by general rules of
the circuit court.
Lamaster v. Keeler, 123 U.
S. 376. The object of § 914 was to assimilate the
form and manner in which the parties should present their claims
and defense, in the preparation for the trial of suits in the
federal courts, to those prevailing in the courts of the state. As
we have seen, it does not include state statutes requiring
instructions to the jury to be reduced to writing, or those which
permit such instructions, and certain papers read in evidence, to
be taken by the jury when they retire, or those which require the
jury to be directed, if they return a general verdict, to find
specially upon particular questions of fact involved in the issues,
and as it does not apply to a motion for a new trial, nor affect
the power of the circuit court to grant or refuse a new trial at
its discretion, so it does not cover any
Page 128 U. S. 555
other means of enforcing or revising a decision once made by the
circuit court. The manner or the time of taking proceedings as a
foundation for the removal of a case by a writ of error from one
federal court to another is a matter to be regulated exclusively by
acts of Congress, or, when they are silent, by methods derived from
the common law, from ancient English statutes, or from the rules
and practice of the courts of the United States. The only
regulation made by Congress as to bills of exceptions is that
contained in § 953 of the Revised Statutes, which provides
that they shall be sufficiently authenticated by the signature of
the presiding judge, without any seal.
These views were adopted by the Circuit Court for the Southern
District of New York in
Whalen v. Sheridan, 10 F. 661, and
by the Circuit Court for the District of Massachusetts in
United States v. Train, 12 F. 852.
In the present case, the defendant prepared and served its bill
of exceptions within the forty days from January 25th. The
expression "prepare and serve" in the order allowing the forty days
clearly meant, in view of Rules 67 and 69 of the circuit court,
that the proposed bill was to be prepared and served on the
opposite party within the forty days, so that he might propose
amendments to it within the time prescribed by the rules. It was so
prepared and served within the forty days. It was retained by the
plaintiff for ten days after its service. He then obtained, by
stipulation, from the defendant, ten days' more time to prepare and
serve amendments. The proposed amendments were served on the tenth
day, and the notice of settlement was accepted, written admission
of its service was given, and it was retained. Under these and the
other circumstances above detailed, we think the defendant was
entirely regular in its practice, and that the plaintiff was
estopped from raising the objection which he made before Judge
Shipman.
On the facts of the present case, the decision in
Muller v.
Ehlers, 91 U. S. 249, has
no application. In that case, on a trial by the court, without a
jury, of an action at law, there was a general finding for the
plaintiff, and a motion for a new
Page 128 U. S. 556
trial. The motion was continued until the next term, when it was
overruled and judgment was entered on the finding. At the latter
term, a writ of error, returnable to this Court, was sued out and
the term was adjourned without any bill of exceptions having been
signed or allowed or any time having been given, either by consent
of the parties or by order of the court, to prepare one. At the
next ensuing term, 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 day the finding was made, and it did not appear that that had
been done with the consent or knowledge of the plaintiff. On these
facts, this Court held that the order of the court below directing
the filing of the bill of exceptions as of the date of the finding
was a nullity on the ground that the parties had, in due course of
proceeding, both in law and in fact been dismissed from the court.
That decision has no application to the present case, because the
rights of the defendant were saved by the express order of the
court, made during the term, and by a sufficient compliance on the
part of the defendant with the rules of the circuit court, and by
what must be held to have been the consent of the plaintiff.
In this view of the case, the question whether the term at which
the verdict was rendered expired on the 25th of February, being the
Saturday next preceding the last Monday of February, or on the 31st
of March, being the Saturday next preceding the first Monday of
April, is immaterial. The rules of the circuit court clearly
contemplate proceedings to perfect a bill of exceptions within the
times limited by those rules, without reference to the expiration
of a term. By § 658 of the Revised Statutes, terms of the
circuit court are appointed to be held in the Southern District of
New York on the first Monday in April and the third Monday in
October, "and for the trial of criminal causes and suits in equity"
on the last Monday in February. The defendant contends that the
October term terminated at the beginning of the February term, and
the plaintiff contends that the October term terminated at the
beginning of the April term. We do not find it necessary to decide
this question.
Page 128 U. S. 557
A writ of mandamus may properly be issued by this Court to
compel the judge of an inferior court to settle and sign a bill of
exceptions.
Ex Parte
Crane, 5 Pet. 190. Such a writ does not undertake
to control the discretion of the judge as to how he shall frame the
bill of exceptions, or as to how he shall decide any point arising
on its settlement, but it only compels him to settle and sign it in
some form.
The writ will issue in the terms of the prayer of the
petition commanding the judge to settle the bill of exceptions
tendered by the defendant according to the truth of the matters
which took place before him on the trial of the aforesaid action,
and when so settled, to sign it as of the 10th day of April, 1888,
that being the day when the proposed bill and proposed amendments
were submitted to him for settlement.
