U.S. Supreme Court
Young v. Martin, 75 U.S. 8 Wall. 354 354 (1868)
Young v. Martin
75 U.S. (8 Wall.) 354
1. The entries of a clerk of a territorial district court stating in a general way the proceedings had in that court, and that they were excepted to by counsel, do not present the action of the court and the exceptions taken in such form that they can be considered by this Court.
2. It is no part of the duty of the clerk to note in his entries the exceptions taken or to note any other proceedings of counsel except as they are preliminary to or the basis of the orders or judgment of the court.
3. To be of any avail, exceptions must be drawn up so as to present distinctly the ruling of the court upon the points raised, and must be signed and sealed by the presiding judge. Unless so signed and sealed, they do not constitute any part of the record which can be considered by an appellate court.
4. When parties, after a demurrer interposed by them to an answer is overruled, instead of relying upon its sufficiency, file a replication, they thereby abandon the demurrer, and it ceases henceforth to be a part of the record.
The case was begun in a district court of the territory just named, and was carried thence to the supreme court of the same, under the provisions of an act of the legislature of the territory, providing for appeals to the supreme court, approved January 18, 1861. [Footnote 1] The 1st section of that act provides:
"That hereafter whenever any final order, judgment, or decree is made or rendered in the district court of the territory, the party aggrieved may have the same reviewed in the Supreme
Court on appeal, by obtaining from the clerk of the court, making or rendering such order, judgment, or decree, a complete transcript of the record of the case, which shall be filed with the clerk of the supreme court."
The 7th section provides that:
"The hearing of the supreme court shall be upon the record and argument of counsel; and the district court is hereby required to sign all bills of exceptions taken to its rulings, decisions, or charge to the jury, which shall be incorporated into and constitute part of the record of the cause."
The 8th section provides that:
"When the judgment, final order, or decree shall be reversed, either in whole or in part, the supreme court may render such judgment as the court below should have rendered, or remand the cause to the court below to proceed according to the decision of the supreme court."
Final judgment was rendered in the district court against the plaintiffs, on the 14th of March, 1867, and a complete transcript of the proceedings in the case was filed by the plaintiffs, with the clerk of the supreme court of the territory, on the 2d of August, 1867, attached to which transcript was an assignment of errors by the plaintiffs, with a prayer asking that the judgment of the district court might be reversed, and judgment rendered in favor of the plaintiffs on the record. No bill of exceptions was taken at the trial in said district court, but in the record the following appeared, to-wit:
"Plaintiffs' counsel filed demurrer to defendant's answer, which was argued by Messrs. Baskin and Hempstead for plaintiffs, and Messrs. Marshall and Carter, for defendant. Pleadings submitted to the court and held under advisement."
"Court overruled demurrer filed by plaintiffs to defendant's answer, and ruled that defendant has a lien on the goods of E. R. Young & Sons, now in possession of defendant, for freight, both by the McWhurt train and the Irwine train. "
"Plaintiffs ordered to reply as though demurrer had not been filed. C. H. Hempstead Esq., counsel for plaintiff, excepted to the ruling of the court."
"C. H. Hempstead Esq., made a verbal motion praying for judgment and damages on the pleadings. Motion argued by Messrs. Baskin and Hempstead for plaintiffs, and Messrs. Marshall and Carter for defendant."
"Pleadings submitted to the court and held under advisement."
"Motion for judgment overruled. Rulings excepted to by plaintiffs' counsel."
The supreme court of the territory dismissed the appeal, and the plaintiff took this writ of error.