1. A paper, found in the record, purporting to be a statement of
facts agreed to by the parties, and filed with the clerk after the
writ of error is issued, or after the case is disposed of by the
circuit court, cannot be noticed here on writ of error through both
parties' consent.
2. Prior to the Act of March 3, 1865, parties to an action at
law could submit the issues of fact to be tried by the court
without a jury, but they were bound by the judgment of the court,
and could not have a review on error of any ruling of the court on
such trial.
3. To enable parties to have such a review and to enable them to
make a valid agreement to waive a jury the act above-mentioned was
passed, which for that purpose required the waiver to be in writing
and filed with the clerk.
4. There can, under this act, be no review of the ruling of the
court in such cases unless the record shows that such an agreement
was signed and filed with the clerk.
5. But the existence of such a writing may be shown in this
Court 1st, by a copy of the agreement, or 2d, by a statement in the
finding of facts by the court that it was executed, or 3d, by such
statement in the record
Page 79 U. S. 276
entry of the judgment; or 4th, by such statement in the bill of
exceptions.
6. Unless it appears that such an agreement was filed, the
judgment must be affirmed unless error appear in other parts of the
record than the finding of facts and judgment of the court
thereon.
7. Parties may still waive a jury as they could before the act
of 1865, without filing a written stipulation, but in such case no
error can be considered in the action of the court on such trial,
but the judgment will be held valid unless other errors are
apparent in the record.
8. Parties will be presumed in this Court to have waived their
right to a trial by jury of issues of fact whenever it appears that
they were present at the trial in person or by counsel, and made no
demand for a jury.
9. But unless it appears that they were so present, or otherwise
gave consent, it is error, for which the judgment must be reversed,
to try such issues in actions at law without a jury.
The Act of Congress of March 3, 1865, after presenting in its
first two sections the manner in which grand and petit jurors are
to be selected and empanelled in criminal cases, proceeds in its
fourth thus to enact:
"Issues of fact in civil cases in any Circuit Court of the
United States, may be tried and determined by the court without the
intervention of a jury, whenever the parties or attorneys of record
file a stipulation in writing with the clerk of the court
waiving a jury."
It then goes on in the same section:
"The finding of the court upon the facts, which finding may be
either general or special, shall have the same effect as the
verdict of a jury. The rulings of the court in the cause, in the
progress of the trial, when excepted to at the time, may be
reviewed by the Supreme Court of the United States upon a writ of
error or upon appeal, provided the rulings be duly presented by a
bill of exceptions. When the finding is special, the review may
also extend to the determination of the sufficiency of the facts to
support the judgment."
This statute being in force, Case, on the 13th September, 1868,
as receiver of the First National Bank of New Orleans,
Page 79 U. S. 277
brought suit against Kearney on two promissory notes owned by
the bank.
Without any agreement in writing filed to have the case tried
under the above-quoted act of Congress, or any agreement in writing
at all, so far as the transcript of the record showed, a trial was
afterwards had
by the court, which rendered judgments
against the defendant on the 12th of January, 1869.
Though, as above-mentioned, no agreement to submit in writing
appeared or was inferable, the record of the judgment showed that
counsel were present on both sides when the trial was had. It ran
thus:
"December 7, 1868. This cause came up for trial -- J. D. Rouse
and Elmore and King, for plaintiff; J. G. L. Bright and Bradford,
Lea, and Finney, for defendants -- when, after hearing the
pleadings, evidence, and argument, the court considering the same,
it is ordered, adjudged, and decreed that Charles Case do recover
&c."
A writ of error was applied for and obtained by the defendant,
on the 28th of January, 1869, and filed on the same day, a citation
being issued and served on that day.
On the
6th of November, 1869, a paper bearing date the
19th of October, 1869, and signed by the plaintiff, and by the
counsel for the defendant, was filed in the court below, which
contained an agreement by them that the statement of facts set
forth therein should be "the statement of facts for the writ of
error returnable to the Supreme Court of the United States." There
was no bill of exceptions.
On the transcript of such a record, the case came here. The
question now was what the court should do on such a record.
Page 79 U. S. 280
MR. JUSTICE MILLER delivered the opinion of the Court.
No question arises on the process or pleadings; there is no bill
of exceptions, and the plaintiff in error relies on what purports
to be a statement of facts in the case to show the error of which
he complains. That statement is signed by the defendant in error
and by the counsel for the plaintiff, and does not profess to be
facts found by the judge. The writ of error had been sued out nine
months before this paper was signed and filed with the clerk.
It needs no argument to show that this Court cannot look into
such a paper as part of the record, nor make it the foundation of
revising the judgment, though both parties consent to it. The case
here must be tried on the rulings of the court below on what was
before it, and this must appear by the record; and if the facts are
to be considered they must appear by bill of exceptions, or by an
agreed statement submitted to the court for its judgment, or by the
finding of the court under the statute. It cannot be permitted for
the parties, by consent to make up a case for this Court after it
has passed from the control of the court below. The case of
Insurance Company v. Tweed is not a parallel case. There,
the statement, such as it was, was made by the judge, and on it he
founded his judgment. It was made and filed at the time the
judgment was rendered, and, although defective in many respects,
there was sufficient in it to present the legal propositions if the
confused character of the paper was waived. This the counsel here
desired to do, and the court permitted. We are all of opinion,
therefore, that the paper called a statement of facts must be
disregarded.
But what judgment must follow? If the transcript of the record
contained the written agreement of the parties submitting the case
to the court, as provided by the Act of March 3, 1865, we should
have no difficulty in affirming the judgment. But not only is there
no such paper found, but there is no statement anywhere in the
record that the parties did agree, either in writing or otherwise,
to submit the case to the court.
Page 79 U. S. 281
The Judiciary Act of 1789, § 12, declares that the trial of
issues in fact in the circuit courts shall, in all suits, except
those of equity and of admiralty and maritime jurisdiction, be by
jury. This provision and that found in the seventh amendment of the
Constitution, adopted after the Judiciary Act, namely, "that in
suits at law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved,"
constituted the only legislative rule for the federal courts,
except in Louisiana, until the act of 1865. Undoubtedly both the
Judiciary Act and the amendment to the Constitution secured the
right to either party in a suit at common law to a trial
by jury, and we are also of opinion that the statute of 1789
intended to point out this as the mode of trial in issues of fact
in such cases. Numerous decisions, however, had settled that this
right to a jury trial might be waived by the parties, and that the
judgment of the court in such cases should be valid. [
Footnote 1] Notwithstanding, however, the
number of cases in which the waiver of this right is mentioned, and
either expressly or tacitly held to be no objection to the
judgment, it is remarkable that so little is said as to the mode in
which this waiver shall be made to appear. In most of the cases, it
is somewhere in the record stated affirmatively that the parties
did waive a jury, or did consent to the trial by the court without
a jury. In the case of
Bank of Columbia v. Okely,
[
Footnote 2] the Court held
that there was an implied waiver of this right when the defendant
made his note negotiable at the Bank of Columbia, there being in
the charter of that bank a provision authorizing the collection of
such debts by a summary proceeding, which did not admit of a jury
trial. In
Hiriart v. Ballon, [
Footnote 3] where a summary judgment was rendered against
a surety in an appeal bond, it was held that the defendant, by
becoming
Page 79 U. S. 282
surety in a court whose rules provided for such summary
judgment, had waived his right to a trial by jury. It seems,
therefore, that both by express agreement in open court, and by
implied consent, the right to a jury trial could be waived.
[
Footnote 4] But as was shown
in the recent case of
Flanders v. Tweed, [
Footnote 5] this Court had held that no
review of the decision of the court below could be had of any
ruling at the trial where the parties had consented to accept the
court, instead of a jury to decide issues of facts.
In this state of the law the act of 1865 was passed. The first
two sections are devoted to prescribing the manner in which grand
and petit juries shall be selected and empanelled in criminal
trials. The fourth section enacts that issues of fact in civil
cases, in any circuit court of the United States, may be tried and
determined by the court without the intervention of a jury,
whenever the parties or their attorneys of record, file a
stipulation in writing with the
clerk of the court waiving
a jury. It then proceeds to prescribe the mode of finding the
facts, and the effect to be given to such finding, and provides for
a review of the case by this Court. The manner in which the record
is to be prepared for this and the extent of the inquiry in this
Court are specifically pointed out.
The question arises on this statute whether this mode of
submitting a case to the court without a jury was intended to be
exclusive of all other modes, so that if there is no stipulation in
writing waiving a jury, there is error, for which the judgment must
be reversed. Although the language of the section might admit of
that construction, it is not the only one of which it is
susceptible. As stated in the case already referred to, of
Flanders v. Tweed, the main purpose of the act undoubtedly
was to enable the parties who were willing to waive a jury to have
the case reviewed on writ of error when tried by the court alone.
This was rendered necessary, as shown by Mr. Justice Nelson in the
opinion in that case, by the former decisions, based on the
Page 79 U. S. 283
idea that in such cases the court did not sit as a court of law,
but as
quasi-arbitrators. To remove this difficulty, the
statute provided a mode by which the parties who agreed to waive a
jury should have the benefit of a writ of error to the rulings of
the court on questions of law. The language of the section is that
the stipulation may be filed with the clerk of the court, which is
undoubtedly designed to enable the parties to make agreements in
vacation; and it is required to be in writing, to prevent either
party demanding a jury unexpectedly at the trial. In those courts
where juries are called from a great distance and detained at a
heavy sacrifice, the courts usually give jury trials the
preference. The benefit, therefore, of an announcement by which the
number of these, trials is diminished, and the case placed in an
attitude to be taken up at the convenience of the court and the
parties is obvious. We cannot believe that Congress intended to say
that the parties shall not, as heretofore, submit their cases to
the court unless they do so by a written stipulation, but that it
was the intention to enact that if parties who consent to waive a
jury desire to secure the right to a review in the Supreme Court of
any question of law arising in the trial, they must first file
their written stipulation, and must then ask the court to make a
finding of such facts as they deem essential to the review, and ask
the ruling of the court on points to which they wish to except. If
this is not done the parties consenting to waive a jury stand as
they did before the statute, concluded by the judgment of the court
on all matters submitted to it. This we understand to be the effect
of the opinion in
Flanders v. Tweed.
But, although a written stipulation in the circuit court is
essential to a review in this Court, is the presence of the
agreement or its copy in the transcript sent here indispensable? A
copy of it should come up, as observed by Mr. Justice Nelson, and
that is the more appropriate evidence of compliance with the
statute. Still we are not prepared to say that if it shall
affirmatively appear in any other part of the record proper, that
such a writing was made by the
Page 79 U. S. 284
parties, that it will not be sufficient here. If, for instance,
it is stated in the finding of facts by the court, or in the bill
of exceptions, or in the record of the judgment entry, that such a
stipulation was made in writing, the record would show that the
condition in which a review is allowed existed, and we would not
feel at liberty to contradict the record in this respect. In a case
where there is no evidence that it was submitted in writing under
the statute, but the record shows affirmatively that the parties
waived a jury, we hold such evidence of waiver to be sufficient to
support the judgment, but not sufficient to authorize a review of
the rulings of the court at the trial. But the record before us
contains no statement that the parties agreed in writing to submit
the case to the court, nor any express statement that they waived a
jury at all. The language of the judgment is that
"This cause came up for trial; J. D. Rouse and Elmer and King
for plaintiffs; G. L. Bright and Bradford, Lea, and Finney, for
defendants; when, after hearing the pleadings, evidence, and
argument, the court considering the same, it is ordered, adjudged,
and decreed,"
&c.
Is this Court at liberty to infer from the entry a waiver of the
right to a jury trial? When we consider the cases already cited, in
which such a waiver has been implied, and that the right to have a
jury when a party demands it is so universally known and respected,
we think that it is almost a necessary inference, where a party is
present by counsel and goes to trial before the court without
objection or exception, he has voluntarily waived his right to a
jury, and must be held in this Court to the legal consequences of
such a waiver. [
Footnote 6] But
we are not prepared to go further.
If the state of the pleadings presents issues of fact to be
tried, and there is nothing to show that the party complaining of
the error was present by himself or counsel at the trial, and no
jury was called, we think it is error for the
Page 79 U. S. 285
court to try those issues without a jury, because there can be
no presumption that the party has waived his legal and
constitutional right to have a jury.
The record before us presents, in the light of these views, a
case where the parties consented to waive a jury, but did not take
the steps necessary to secure the right to a review of the findings
of the court as provided by statute.
There is therefore no error of which we can take cognizance, and
the judgment of the circuit court is
Affirmed.
[
Footnote 1]
<|4 Wheat. 235|>Bank of Columbia v. Okely, 4
Wheat. 235;
<|9 Pet. 156|>Hiriart v. Ballon, 9 Pet.
156;
<|3 Pet. 425|>Parsons v. Armor, 3 Pet. 425;
United States v. Rathbone, 2 Paine 578;
<|18 How.
135|>Guild v. Frontin, 18 How. 135;
<|20 How.
427|>Suydam v. Williamson, 20 How. 427;
<|21 How.
85|>Kelsey v. Forsyth, 21 How. 85;
<|21 How.
223|>Campbell v. Boyreau, 21 How. 223;
<|1 Wall.
102|>Burr v. Des Moines Co., 1 Wall. 102.
[
Footnote 2]
<|4 Wheat. 235|>4 Wheat. 235.
[
Footnote 3]
<|9 Pet. 156|>9 Pet. 156.
[
Footnote 4]
See <|5 How. 290|>Phillips v. Preston, 5 How.
290.
[
Footnote 5]
<|9 Wall. 425|>9 Wall. 425.
[
Footnote 6]
<|5 How. 290|>Phillips v. Preston, 5 How.
290.
