On an appeal from the judgment of the Supreme Court of a
territory, the findings of fact are conclusive upon this Court.
One general exception to thirteen different instructions cannot
be considered sufficient when each instruction consists of
different propositions of law and fact and many of them are clearly
correct.
This action was brought in a District Court of the Territory of
Oklahoma to recover the value of certain goods sold and delivered
by the plaintiffs (defendants in error here) to the defendant
below, amounting to the sum of $5,004.58, the sales having been
made between the 1st of November, 1890, and the 10th of March,
1891, and the defendant at the time of the sales being a resident
of Fort Worth, in the State of Texas. At the time of the
commencement of the action, plaintiffs also commenced attachment
proceedings against the defendant on the ground that he was at that
time a nonresident of the Territory of Oklahoma and also on the
ground that he was about to sell, convey, and otherwise dispose of
his property subject to execution, with a fraudulent intent to
cheat, hinder, and delay his creditors.
The defendant filed an answer denying the plaintiffs' complaint,
and also one denying each and every material allegation contained
in the plaintiffs' petition and affidavits for an attachment.
Page 170 U. S. 616
Under the practice in Oklahoma, there were two issues thus made
-- one in regard to the existence and amount of defendant's
indebtedness to the plaintiffs and the other as to the facts upon
which the attachment could be sustained. These two separate issues
came on for trial on the 16th of June, 1892, before the district
court and a jury, and after the evidence was in, the court
submitted to the jury the two issues, and directed a separate
verdict to be returned in regard to each issue. The jury returned
the following verdicts:
"We, the jury, duly impaneled and sworn in the above case, find
for the plaintiffs on the attachment issue. Eugene Walker,
Foreman."
"We, the jury, duly impaneled and sworn in the above-entitled
case, find for the plaintiffs, and assess their damages at
$5,434.61. Eugene Walker, Foreman."
At the request of the defendant, the court also submitted to the
jury the following questions in writing:
"(1) Was J. R. Holloway on the 31st day of October, 1891, about
to sell and convey, or otherwise dispose of, his property subject
to execution, with the intent to cheat, hinder, and delay his
creditors?"
"(2) Was J. R. Holloway on the 31st day of October, 1891, a
nonresident of Oklahoma territory?"
The jury returned an affirmative answer to each question.
Judgment was entered for the amount of the verdict.
The defendant appealed to the supreme court of the territory,
where the judgment was affirmed, and thereupon he obtained a writ
of error from this Court, and the record is now here for
review.
Page 170 U. S. 617
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
This is a very confused record. There would seem to be two bills
of exceptions -- one containing the evidence and the other reciting
certain exceptions, but containing no part of the evidence taken
upon the trial. Both seem to have been signed by the judge who
tried the case, while neither purports to have been signed by him
until months subsequent to the day of trial.
The bill of exceptions containing the evidence is the first bill
set forth in the record, and the other bill follows it. It is not
material here which bill may be regarded as the regular one,
because, on an appeal from the supreme court of a territory, we
cannot examine the evidence, as to its weight or sufficiency, and
the findings of fact are conclusive upon this Court.
Harrison
v. Perea, 168 U. S. 311, and
cases cited.
There are left only the exceptions to rulings on the admission
or rejection of evidence, and those taken to the instructions of
the court to the jury. The former are not particularly urged, and
the latter are substantially confined to two. They arise upon the
instructions of the court to the jury in regard to what is
sufficient proof of nonresidence, and also as to the number of the
jury necessary to agree upon a verdict.
The jury found for the plaintiffs on the attachment issue, and
also for the plaintiffs in the main action, and assessed their
damages at $5,434.61. In addition to that, the jury found that the
defendant, on the 31st of October, 1891, was about to sell and
convey, or otherwise dispose of, his property subject to execution,
with the intent to cheat, hinder, and delay his creditors, and also
that, on the 31st day of October, 1891, he was a nonresident of
Oklahoma Territory.
Without at this moment considering whether the exceptions taken
to the charge of the judge were sufficiently and
Page 170 U. S. 618
properly taken, we think it is not material now to inquire as to
the correctness of the charge of the court in relation to the
question of defendant's nonresidence. If he were a nonresident when
the attachment was issued, it could be sustained on that ground.
But it could also be sustained if, at the time it was issued, the
defendant was about to sell and convey, or otherwise dispose of his
property subject to execution with the intent to cheat, hinder, and
delay his creditors. So there were two facts, entirely separate and
distinct from each other, either of which, being found to exist,
would justify and support the attachment.
The jury having found that the defendant, at the time the
attachment was issued, did intend to convey his property, and thus
cheat his creditors, that fact is conclusive upon this Court, and,
being in itself sufficient to uphold the attachment, without
reference to the other fact of the defendant's nonresidence, a
complete answer is furnished to any alleged error in the
instruction of the court as to what constitutes a nonresident.
Whether the court erred in charging the law in relation to
nonresidence is therefore immaterial. There is no such connection
between the two grounds, upon either of which the attachment could
be supported, that an error in the charge of the court in regard to
one can be said to affect the other, and thus furnish cause for a
new trial.
The other error complained of relates to the instruction of the
court that the jury need not be unanimous in their verdict, and
that nine could determine it.
The record does not show that the verdict was returned by a less
number than twelve jurors, nor does the statute require the verdict
to be signed by all the jurors. At the time when the verdict was
rendered, the jury was not polled. It does not, therefore,
affirmatively appear that this verdict was a verdict of less than
twelve jurors. If, however, the instruction to the jury had been
properly excepted to, the judgment would have to be reversed under
our ruling in
American Publishing Co. v. Fisher,
166 U. S. 464, and
Springville v. Thomas, 166 U. S. 707. We
are of opinion, however, that no proper and
Page 170 U. S. 619
sufficient exception was taken by the defendant to the
instruction of the judge to the jury on this question.
The record shows that the court gave some thirteen different
instructions to the jury, the thirteenth being the one relating to
the number necessary to find a verdict. All of the instructions are
set forth at length. Many of them contain more than one proposition
of law or fact. At the end of the instructions is the signature of
the judge. Following the signature, the record contains this
further statement:
"The questions hereto attached you will answer in writing, after
each question, the word 'Yes' or 'No.' You need not be unanimous in
determining these questions, but, to answer either of them, nine of
you must agree upon the answer."
"Your foreman will sign each of the verdicts and also this
special verdict, when you are agreed. John G. Clark, Judge."
Then follow "the questions hereto attached," which were the
special questions submitted to the jury, and already mentioned, to
which affirmative answers were made, and signed by the foreman.
Then follows this general statement:
"To the giving of which instructions, and each of them, the
defendant at the time excepted."
On the same day that the verdict was rendered, the defendant
moved for a new trial on the grounds therein stated. The grounds
are mentioned in great detail.
No mention is made of the thirteenth instruction to the jury,
and it is nowhere alleged as ground for a new trial that there was
any error in stating to the jury that nine of their number might
find a verdict.
The statement in the record in regard to the manner in which the
defendant took exceptions to the charge of the judge leaves the
fact quite plain that those exceptions were taken generally, and in
a lump, and were not in reality taken separately, or applied
specifically to any particular instructions. It was a general
statement that the whole charge of the judge was specifically
excepted to. No specifications
Page 170 U. S. 620
were given -- nothing was said in the way of calling the
attention of the judge to any particular portions of his charge
which the defendant objected to. When we look at the instructions
contained in these various paragraphs, we see that in many of them
there are two or more different propositions of law, and that a
general exception taken to any of such paragraphs would be
insufficient if one of the several propositions were correct.
Should one general exception to thirteen different instructions be
considered sufficient, when each instruction consists of different
propositions of law and fact and many of them are clearly correct?
We think not. The wholesale manner of taking exceptions is unfair,
both to the judge and the opposite party. After a judge has given a
long charge to the jury, consisting of many different propositions
of law and fact involved in the trial, a general exception noted at
the end of the charge to each proposition, separately, of law or
fact announced therein, is not sufficient if any proposition of law
contained in the charge is correct. Those propositions in regard to
the correctness of which there is a real controversy should be at
least called to the attention of the judge so that, if he thought
it proper, he might correct, modify, or explain them. It is evident
the defendant's counsel had no reference, in his exceptions to the
charge, to many of the propositions therein contained, for they
were favorable to the defendant. And it is equally plain that he
had in fact no reference to the instructions as to the number
necessary to find a verdict. This is shown by the motion for a new
trial and the grounds therein mentioned. It would not conduce to
the fair administration of justice to permit such an exception to
be regarded as sufficient to raise the question herein sought to be
reviewed.
Some other questions were made in the brief of the counsel for
plaintiff in error, all of which we have carefully examined, but do
not find any error which would lead to a reversal, and the judgment
must therefore be
Affirmed.
MR. JUSTICE BREWER dissents.
