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U.S. Supreme Court

Pomeroy's Lessee v. State Bank of Indiana, 68 U.S. 1 Wall. 592 592 (1863)

Pomeroy's Lessee v. State Bank of Indiana

68 U.S. (1 Wall.) 592


1. No "exception" lies to overruling a motion for anew trial, nor for entering judgment.

2. The entries on a judge's minutes, the memoranda of an exception taken, are not themselves bills of exception, but are only evidences of the parties' right seasonably to demand a bill of exceptions -- memoranda, in fact, for preserving the rights of the party in case the verdict should be against him and he should desire to have the case reviewed in an appellate tribunal. No exceptions not reduced to writing and sealed by the judge is a bill of exceptions, properly speaking, and within the rules and practice of the federal courts. The seal, however, being to the bill of exceptions, and not to each particular exception contained in it, it is sufficient if the bill be sealed, as is the practice in the first and second circuits, at its close only.

3. Where an objection is to the ruling of the court, it is indispensable that the ruling should be stated and that it should also be alleged that the party then and there excepted.

4. This Court cannot give judgment as on an agreed statement of facts or case stated except where facts, and facts only, are stated. If there be question as to the competency or effect of evidence or any rulings of the court below upon evidence to be examined, the Court cannot entertain the case as an agreed statement. Burr v. Des Moines Co., ante, p. 68 U. S. 99, affirmed.

5. Where a case is brought here upon a writ of error issued under the 22d section of the Judiciary Act and there is neither bill of exceptions, agreed statement, nor special verdict brought up, the judgment, generally speaking, will be affirmed, as it was in this case. Burr v. Des Moines Co., ante, p. 68 U. S. 99, where the case was "dismissed" simply, was special in its circumstances. chanrobles.com-red

Page 68 U. S. 593

The suit was ejectment, brought by a nominal plaintiff, as at common law, against the casual ejector, to recover possession of a tract of land in the State of Indiana. Process was duly served upon the persons in possession, and the corporation defendants were admitted to defend the suit, and, as such defendants, filed the usual consent rule, confessing lease, entry and ouster, and pleaded the general issue. The parties waived a jury, and the evidence and law of the case under the issue joined in the pleadings were by the agreement of counsel submitted to the court. The court found that the title of the defendants was the better title and that they were entitled to judgment. The plaintiffs then moved for a new trial, and the parties were heard upon that motion, but the court after the hearing overruled the motion and entered judgment for the defendants. Whereupon, the plaintiff sued this writ of error and sought to reverse the action of the court upon the ground that the finding and judgment were erroneous.

The premises in controversy had belonged to one Webb, and both parties attempted to show title from that source. The lessors of the plaintiff claimed title by virtue of a deed from the marshal of the United States, given in pursuance of a sale of the premises made by that officer under an execution issued from the circuit court of the United States. The record showed that at the November Term 1838, of that court, held at Indianapolis, within and for the District of Indiana, they recovered judgment against the owner of the premises, and one Shoemaker, for the sum of $1,125.31 damages, and costs of suit taxed at $36.19. Execution was issued upon the judgment on the 17th December following, and on the 20th of May, 1839, the marshal made his return upon the same. The return showed that the sale was made at Indianapolis, in the County of Marion, and not in the county where the land lay, and that the lessors of the plaintiff were the purchasers at the sale for the consideration of $60, for the several tracts constituting the premises described in the declaration. chanrobles.com-red

Page 68 U. S. 594

The defendants contended that the sale was void because not made in the county where the land was situated, and they claimed title under a certain trust deed previously executed by the parties before named as the judgment debtors of the lessors of the plaintiff. The trust deed was dated on the 5th November, 1838, and the title of the defendants was derived under a conveyance made by the trustee in the execution of the trusts therein declared. The grantors, by the terms of the deed, conveyed to the trustee, one Jenners, and to his executors or administrators, as successors, all the real estate, goods, chattels, judgments, notes, securities for money, open accounts, and other choses in action, bank stock and insurance stock, as more particularly set forth in a schedule inserted in the instrument. The instrument itself recited that the grant, bargain, sale, conveyance, transfer, and assessment were to be subject to certain specified trusts, and be accompanied with certain described powers. A commission to the trustee and the expenses of executing the trust were first to be paid in all cases; next, a certain promissory note due to the Branch Bank of Indiana; then certain judgments already recovered against the grantors; then all other and future judgments recovered against them, and finally, all their other debts.

The plaintiff contended that the trust deed was void, on account of the extraordinary powers conferred upon the trustee, and also on account of some unusual reservations contained therein in favor of the grantors. Evidence was introduced on both sides, and the parties were heard upon the merits and also upon a motion for new trial, before the judgment was finally entered.

The record stated that the plaintiff filed two bills of exceptions to the rulings of the court.

The first bill of exceptions stated that the court held:

1. That the proceedings under which the lessors of the plaintiff made title were all correct, that the sale of the marshal was made at the usual place of making sales, and that it was regular and sufficient to convey the title of the judgment debtors. chanrobles.com-red

Page 68 U. S. 595

2. That the trust deed was also valid and effectual in law to convey the premises, and that it was the paramount and better title.

Neither party excepted to anyone of these rulings of the court, but the bill of exceptions further stated in effect, that after the decision was announced, and before the entry of the judgment, the plaintiff moved the court to grant him a new trial for the following reasons:

First. Because the court erred in overruling the objection of the plaintiff to the admissibility of the trust deed in evidence.

Second. Because the court erred in holding that the trust deed was valid and constituted the paramount title as against the lessors of the plaintiff claiming under the sale made by the marshal.

The parties, as before remarked, were heard, and the motion overruled, and the final judgment entered. The concluding statement of the bill of exceptions was as follows, that is to say: "To the overruling of which motion and entry of judgment as aforesaid, the plaintiff then and there excepted;" the exception being plainly to the overruling of the motion for a new trial, and to the entry of judgment; not to the ruling of the court on the subject of either the marshal's or the trust deed.

The second bill of exceptions, which was entitled "CASE," followed. It occupied in the printed transcript of the record presented to this Court, fifty 8vo. pages in small pica type. It had not the nature of a case stated, or agreed statement of facts, in the stricter sense in which that expression is used by the profession or courts, but was made up of a variety of things. It contained, on the one hand, the evidence and exhibits which the lessors of the plaintiffs introduced, and parts of which, as the record showed, had been admitted under objection from the other side, while other parts were received without objection. In cases where objections were made and overruled, it is stated sometimes that the defendants excepted; while in some instances that statement was omitted. In one instance, where evidence offered by the plaintiff's lessor was rejected, it is stated that the plaintiff chanrobles.com-red

Page 68 U. S. 596

excepted. On the other hand, it contained the evidence and exhibits introduced by the defendants, whether admitted with or without exception, and as in regard to the evidence on the other side, when exception was made and overruled, an exception was sometimes stated and sometimes not. Over and above all which, various matters, introduced on both sides, were given, to-wit, judicial records, written and oral testimony, instruments in writing and facts, sometimes admitted absolutely, sometimes introduced conditionally, and subject to the court's opinion as to their competency and value. No rulings of the court, nor its final judgment, were given, but after the signatures of the respective counsel, one representing the plaintiff and the other the defendant, the whole concluded with a statement, signed by the judge and under his seal, in these words:

"This was all the evidence given on the trial of said cause. And the plaintiff prays this, his bill of exceptions, may be signed, sealed, and made a part of the record herein, which is done. "

Page 68 U. S. 597