BOND V. DUSTIN, 112 U. S. 604 (1884)

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U.S. Supreme Court

Bond v. Dustin, 112 U.S. 604 (1884)

Bond v. Dustin

Argued December 3, 1884

Decided December 22, 1884

112 U.S. 604


In an action at law, submitted to the decision of the circuit court by the parties waiving a trial by jury, in which the record does not show the filing of the stipulation in writing required by § 649 of the Revised Statutes, this Court, upon bill of exceptions and writ of error, cannot review rulings upon the admission or rejection of testimony, or upon any other question of law growing out of the evidence, but may determine whether the declaration is sufficient to support the judgment.

The filing of a stipulation in writing waiving a jury under § 649 of the Revised Statutes is not sufficiently shown by a statement in the record or in the bill of exceptions that "the issue joined by consent is tried by the court, a jury being waived," or that "the case came on for trial, by agreement of parties, by the court, without the intervention of a jury."

A motion in arrest of judgment can only be maintained for a defect apparent upon the record, and the evidence is no part of the record for this purpose.

A statute of a state providing that a verdict returned on several counts shall not be set aside or reversed if one count is sufficient governs proceedings in cases tried in the federal courts within that state, and is applicable to judgments lawfully rendered without a verdict.

This was a writ of error to reverse a judgment of the Circuit Court of the United States for the Southern District of Illinois for the defendant in error in an action of assumpsit brought by him against the plaintiffs in error, and tried by that court without a jury. The declaration contained two special counts on bills of exchange, the one for $2,500 and the other for $4,000, drawn upon the defendants by one Falconer, their agent at their instance and for their benefit, and endorsed by the payees to the plaintiff, as well as common counts in the sum of $10,000 for money lent, money paid, money had and received, interest for the use of money due, and upon an account stated. The defendants pleaded non assumpsit and denied the signatures of the instruments set forth in the first two counts.

The record stated that the parties came by their attorneys, "and the issue joined by consent is tried by the court, a jury chanrobles.com-redchanrobles.com-red

Page 112 U. S. 605

being waived," and that the court, having heard the evidence and arguments,

"finds the issue for the plaintiff, and assesses his damages at the sum of $7,173.42, whereupon the defendants enter their motion for a new trial and in arrest of judgment, which, being heard by the court, is overruled,"

and judgment rendered for the plaintiff for that sum and costs.

The court allowed a bill of exceptions, which began with the recital, "the above cause coming on for trial, by agreement of parties, by the court, without the intervention of a jury," and which stated all the evidence introduced by either party; the objections taken by the defendants to the admission of some of the evidence introduced by the plaintiff; the finding and judgment of the court; a motion of the defendants for a new trial because the court heard incompetent testimony against the defendants' objection, and because the judgment was against the law and the evidence; the overruling of that motion; the subsequent making and overruling of a motion in arrest of judgment, and that the defendants excepted to the admission of the evidence objected to, and to the overruling of the two motions.

The errors assigned and argued were to the admission of evidence at the trial; to the overruling of the motion in arrest of judgment, and to

"giving judgment against the plaintiff in error upon the contracts alleged and proved, because, upon the pleadings and evidence, it did not appear that the court had jurisdiction to hear and determine an action brought by the defendant in error on said contracts, or any of the same."


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