text:
The Hine v. Trevor

Error to the Supreme Court of the State of Iowa; the case, as disclosed by the record, having been in substance this:

A collision occurred between the steamboats Hine and Sunshine, on the Mississippi River, at or near St. Louis, in which the latter vessel was injured. Some months afterwards, the owners of the Sunshine caused the Hine to be seized while she was lying at Davenport, Iowa, in a proceeding under the laws of that State, to subject her to sale in satisfaction of the damages sustained by their vessel. The code of Iowa, under which this seizure was made, gives a lien against any boat found in the waters of that State, for injury to person or property by said boat, officers or crew, &c.; gives precedence in liens; authorizes the seizure and sale of the boat, without any process against the wrongdoer, whether owner or master, and saves the plaintiff all his common-law rights, but makes no provision to protect the owner of the vessel.

The owners of the Hine interposed a plea to the jurisdiction of the State court. The point being ruled against them, it was carried to the Supreme Court of the State, where the judgment of the lower court was affirmed; and by the present writ of error this court was called upon to reverse that decision.

To comprehend the argument fully, it is here well to state that Congress had, prior to the date of this proceeding, enacted—

1. In 1789, September 24th, by the Judiciary Act, that the District Court of the United States 'shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden. . . . Saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.'

2. In 1845, by statute of the 26th February of that year, 'that the District Courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the same time employed in business of commerce and navigation, between ports and places in different states and territories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels, employed in navigation and commerce upon the high seas, or tide-waters within the admiralty and maritime jurisdiction of the United States.'

The question in the present case was, how far the jurisdiction of the District Courts of the United States, in cases of admiralty arising on our navigable inland waters, is exclusive; and how far the State courts might exercise jurisdiction concurrently.

Mr. Cook, in favor of the concurrent State jurisdiction:

I. The Judiciary Act of 1789 invests the Federal District Courts with exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy, when the common law is competent to give it. This act was amended in 1845, and extended the admiralty jurisdiction of the Federal courts to cases on the lakes and navigable waters connecting the same, but expressly saving to parties the right of a concurrent remedy which may be given by State laws.

In England the jurisdiction of courts of admiralty was confined to the ebb and flow of the tide; and this court, in the cases of The Thomas Jefferson, and The Steamboat Orleans v. Phoebus, followed the English decisions, confining the admiralty jurisdiction. But in 1851, in the case of The Genesee Chief, it overruled these two cases, and held that the jurisdiction of courts of admiralty extended to the lakes and navigable waters of the United States. But neither in this case nor in any other case decided by this court, that we recall, was it decided that the jurisdiction of the District Courts of the United States in cases of admiralty is exclusive. The judiciary acts of Congress to which we have referred expressly save to suitors, as we have remarked, common-law remedies, and any concurrent remedies provided by State laws.

In the absence, then, of any decision by this court we may look at the action of the State courts. And in a mass of decisions, which may be referred to, we do not find one in which the jurisdiction of the State courts was denied on the ground assumed by plaintiff in this case; but, on the contrary, such jurisdiction of the State courts in this class of cases is admitted all the way through.

In Iowa, from which State the present case comes, there is the case of Miller v. Galland. That case was an attachment against the steamboat Kentucky. A question of jurisdiction, on another point, was raised, and it was held that the court had jurisdiction. Numerous cases in Iowa, cited below, are to the same effect.

We refer to these cases, not because they explicitly and directly decide anything on the question of jurisdiction, but only to show that if the point made by taking this writ is well taken, the Supreme Court of Iowa has been deciding a great many cases over which it had no jurisdiction.

Authorities, however, in other States support its view.

The case of Germain v. The Indiana, is in Illinois. There the court speaks of the difference between the decrees in State courts and in admiralty courts in this class of cases, and clearly upholds the jurisdiction of State courts. Many other cases have been decided in the same State, both before and since the decision in the case last referred to, in which the jurisdiction is recognized and impliedly admitted.

So in New York. The Richmond Turnpike Co. v. Vanderbilt, in the Superior Court of New York City, was a collision in tide-water. The jurisdiction was maintained. The earlier case of Percival v. Hickey, was to the same effect; and the case is an important and well-considered one. The whole question of jurisdiction of State and admiralty courts was there considered, and the jurisdiction of the State courts upheld.

If we may cite text-writers, we have the respectable authority of Mr. Angell, who, after referring to authorities, says: 'We have seen that the remedy in cases of collision lies either in the courts of common law or in the admiralty court.'

So in Missouri. So in Ohio.

Above any authorities already cited is the case of Taylor v. Carryl, in this court. It was three times argued, and the whole question of jurisdiction of State and Federal courts discussed and determined. A vessel had been seized under process of attachment issued from a State court of Pennsylvania, identical with that which issues out of the District Court of the United States sitting in admiralty. A libel was filed in the District Court of the United States for mariners' wages. It was held that where property is levied upon it is not liable to be taken by an officer acting under another jurisdiction. The admiralty jurisdiction of the Federal court, although exclusive in some subjects, is concurrent upon others. The courts of common law deal with ships or vessels as with other personal property. In cases like the one new before the court, courts of common law, we think, have concurrent jurisdiction.

II. Up to the time of The Genesee Chief, it was held by this court that courts of admiralty had jurisdiction only within the ebb and flow of the tide. Then, it follows that up to that time, State courts must have had exclusive jurisdiction over this class of cases, or there was no remedy in the law. Now, if they once had jurisdiction, there must be some law, or provision of the Constitution, which took it from them. We find none. But we do find the decision in that case asserting that the courts of admiralty have jurisdiction above such ebb and flow. But this does not oust State courts from their jurisdiction.

III. The Federal courts are of limited jurisdiction. They can only exercise the jurisdiction given by act of Congress. Now when parties go into the Federal courts, they must show by the pleadings certain facts to give the court jurisdiction; such as residence, citizenship of the different parties, or such other fact as may be prescribed by law, to affirmatively show jurisdiction in the court.

Now apply the rule to the pleadings in this case. By the act of 1845-under which alone the plaintiff in error can set up that the courts of the United States have jurisdiction-these courts have jurisdiction only in matters of contract and tort in, upon, and concerning steamboats of twenty tons burden, enrolled and licensed in the coasting trade, &c. In this case there is no averment that the steamboat was of twenty tons burden; no averment that she was enrolled and licensed for the coasting trade; and no averment that she was engaged in business of commerce and navigation upon the lakes and navigable waters, &c.; no averments, therefore, which affirmatively show jurisdiction in the District Court of the United States at all.

Mr. Grant, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: The Hine v. Trevor


text: Talk:The Hine v. Trevor

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:The Hine v. Trevor


text:
The Hine v. Trevor/Opinion of the Court

The record distinctly raises the question, how far the jurisdiction of the District Courts of the United States in admiralty causes, arising on the navigable inland waters of this country, is exclusive, and to what extent the State courts can exercise a concurrent jurisdiction?

Nearly all the States-perhaps all whose territories are penetrated or bounded by rivers capable of floating a steamboat have statutes authorizing their courts, by proceedings in rem, to enforce contracts or redress torts, which, if they had the same relation to the sea that they have to the waters of those rivers, would be conceded to be the subjects of admiralty jurisdiction. These statutes have been acted upon for many years, and are the sources of powers exercised largely by the State courts at the present time. The question of their conflict with the constitutional legislation of Congress, on the same subject, is now for the first time presented to this court.

We are sensible of the extent of the interests to be affected by our decision, and the importance of the principles upon which that decision must rest, and have held the case under advisement for some time, in order that every consideration which could properly influence the result might be deliberately weighed.

There can, however, be no doubt about the judgment which we must render, unless we are prepared to overrule the entire series of decisions of this court upon the subject of admiralty jurisdiction on Western waters, commencing with the case of The Genesee Chief, in 1851, and terminating with that of The Moses Taylor, decided at the present term; for these decisions supply every element necessary to a sound judgment in the case before us.

The history of the adjudications of this court on this subject, which it becomes necessary here to review, is a very interesting one, and shows with what slowness and hesitation the court arrived at the conviction of the full powers which the Constitution and acts of Congress have vested in the Federal judiciary. Yet as each position has been reached, it has been followed by a ready acquiescence on the part of the profession and of the public interested in the navigation of the interior waters of the country, which is strong evidence that the decisions rested on sound principles, and that the jurisdiction exercised was both beneficial and acceptable to the classes affected by it.

From the organization of the government until the era of steamboat navigation, it is not strange that no question of this kind came before this court. The commerce carried on upon the inland waters prior to that time was so small, that cases were not likely to arise requiring the aid of admiralty courts. But with the vast increase of inland navigation consequent upon the use of steamboats, and the development of wealth on the borders of the rivers, which thus became the great water highways of an immense commerce, the necessity for an admiralty court, and the value of admiralty principles in settling controversies growing out of this system of transportation, began to be felt.

Accordingly we find in the case of The Steamboat Thomas Jefferson, reported in 10 Wheaton, 428, that an attempt was made to invoke the jurisdiction in the case of a steamboat making a voyage from Shippingport, in Kentucky, to a point some distance up the Missouri River, and back again. This court seems not to have been impressed with the importance of the principle it was called upon to decide, as, indeed, no one could then anticipate the immense interests to arise in future, which by the rulings in that case were turned away from the forum of the Federal courts. Apparently without much consideration-certainly without anything like the cogent argument and ample illustration which the subject has since received here-the court declared that no act of Congress had conferred admiralty jurisdiction in cases arising above the ebb and flow of the tide.

In the case of The Steamboat Orleans, in 11 Peters, 175, the court again ruled that the District Court had no jurisdiction in admiralty, because the vessel, which was the subject of the libel, was engaged in interior navigation and trade, and not on tide-waters. The opinion on this subject, as in the case of The Thomas Jefferson, consisted of a mere announcement of the rule, without any argument or reference to authority to support it.

The case of Waring v. Clark, 8 Howard, 441, grew out of a collision within the ebb and flow of the tide on the Mississippi River, but also infra corpus comitatus. The jurisdiction was maintained on the one side and denied on the other with much confidence. The court gave it a very extended consideration, and three of the judges dissented from the opinion of the court, which held that there was jurisdiction. The question of jurisdiction above tide-water was not raised, but the absence of such jurisdiction seems to be implied by the arguments of the court as well as of the dissenting judges.

The next case in order of time, The Geness Cheif, 12 Howard, 457, is by far the most important of the series, for it overrules all the previous decisions limiting the admiralty jurisdiction to tide-water, and asserts the broad doctrine that the principles of that jurisdiction, as conferred on the Federal courts by the Constitution, extend wherever ships float and navigation successfully aids commerce, whether internal or external.

That case arose under an act of Congress, approved February 26th, 1845, which provides that 'the District Courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort arising in, upon, or concerning steamboats, or other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in navigation between ports and places, in different states and territories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of like steamboats and other vessels employed in navigation and commerce upon the high seas and tide-waters within the admiralty and maritime jurisdiction of the United States.' The Genesee Chief was libelled under this act for damages arising from a collision on Lake Ontario. A decree having been rendered against the vessel, the claimants appealed to this court.

It was urged here that the act under which the proceeding was had was unconstitutional.

1st. Because the act was not a regulation of commerce, and was not therefore within the commercial clause of the Constitution.

2d. Because the constitutional grant of admiralty powers did not extend to cases originating above tide-water, and Congress could not extend it by legislation.

The court concurred in the first of these propositions, that the act could not be supported as a regulation of commerce. The Chief Justice, who delivered the opinion, then entered into a masterly analysis of the argument by which it was maintained that the admiralty power conferred by the Federal Constitution did not extend beyond tide-water in our rivers and lakes.

This argument assumed that in determining the limits of those powers, we were bound by the rule which governed the Admiralty Court of Great Britain on the same subject at the time our Constitution was adopted. And it was said that the limit of the court's power in that country was the ebb and flow of the tide.

This was conceded to be true as a matter of fact, but the Cheif Justice demonstrated that the reason of this rule was that the limit of the tide in all the waters of England was at the same time the limit of practicable navigation, and that as there could be no use for an admiralty jurisdiction where there could be no navigation, this test of the navigability of those waters became substituted as the rule, instead of the navigability itself. Such a rule he showed could have no pertinency to the rivers and lakes of this country, for here no such test existed. Many of our rivers could be navigated as successfully and as profitably for a thousand miles above tide-water as they could below; and be showed the absurdity of adoption as the test of admiralty jurisdiction in this country an artificial rule, which was founded on a reason in England that did not exist here. The true rule in both countries was the navigable capacity of the stream; and as this was ascertained in England by a test which was wholly inapplicable here, we could not be governed by it. The cases of The Thomas Jefferson and The Steamboat Orleans, already referred to, were then examined and overruled.

This opinion received the assent of all the members of the court except one.

Although the case arose under the act of 1845, already cited, which in its terms is expressly limited to matters arising upon the lakes and the navigable waters connecting said lakes, and which the Chief Justice said was a limitation of the powers conferred previously on the Federal courts, it established principles under which the District Courts of the United States began to exercise admiralty jurisdiction of matters arising upon all the public navigable rivers of the interior of the country.

This court also, at the same term in which the case of The Genesee Chief was decided, held in Fretz v. Bull, in which the point was raised in argument, that the Federal courts had jurisdiction according to the principles of that case in the matter of a collision on the Mississippi River above tide-water As soon as these decisions became generally known admiralty cases increased rapidly in the District Courts of the United States, both on the lakes and rivers of the West. Many members of the legal profession engaged in these cases, and some of the courts have from this circumstance assumed, without examination, that the jurisdiction in admiralty cases arising on the rivers of the interior of the country is founded on the act of 1845; and such is perhaps the more general impression in the West. The very learned court whose judgment we are reviewing has fallen into this mistake in the opinion which it delivered in the case before us, and it is repeated here by counsel for the defendant in error.

But the slightest examination of the language of that act will show that this cannot be so, as it is confined, as we have already said, to cases arising 'on the lakes and navigable waters connecting said lakes.' The jurisdiction upon those waters is governed by that statute, but its force extends no further.

The jurisdiction thus conferred is in many respects peculiar, and its exercise is in some important particulars different under that act from the admiralty jurisdiction conferred by the act of September 24th, 1789.

1. It is limited to vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade.

2. To vessels employed in commerce and navigation between ports and places in different States.

3. It grants a jury trial if either party shall demand it.

4. The jurisdiction is not exclusive, but is expressly made concurrent, with such remedies as may be given by State laws.

But the true reason why the admiralty powers of the Federal courts began now to be exercised for the first time in the inland waters was this: the decision in the case of The Genesee Chief, having removed the imaginary line of tide-water which had been supposed to circumscribe the jurisdiction of the admiralty courts, there existed no longer any reason why the general admiralty powers conferred on all the District Courts by the ninth section of the Judiciary Act, should not be exercised wherever there was navigation which could give rise to admiralty and maritime causes. The Congress which framed that act-the first assembled under the Constitution-seemed to recognize this more extended view of the jurisdiction in admiralty, by placing under its control cases of seizure of vessels under the laws of impost, navigation, and trade of the United States, when those seizures were made in waters navigable from the sea by vessels of ten tons burden or upwards.

The case of The Magnolia, 20 Howard, 296, is another important case in the line of decisions which we have been considering. It was a case of collision occurring on the Alabama River, far above the ebb and flow of the tide, on a stream whose course was wholly within the limits of the State which bears it name. This was thought to present an occasion when the doctrines announced in the case of The Genesee Chief might properly be reconsidered, and modified, if not overruled. Accordingly we find that the argument in favor of the main proposition decided in that case was restated with much force in the opinion of the court, and that a very elaborate opinion was delivered on behalf of three dissenting judges. The principles established by the case of The Genesee Chief were thus reaffirmed, after a careful and full reconsideration. It was also further decided (which is pertinent to the case before us), that the jurisdiction in admiralty on the great Western rivers did not depend upon the act of February 3d, 1845, but that it was founded on the act of September 24th, 1789. That decision was made ten years ago, and the jurisdiction, thus firmly established, has been largely administered by all the District Courts of the United States ever since, without question.

At the same time, the State courts have been in the habit of adjudicating causes, which, in the nature of their subjectmatter, are identical in every sense with causes which are acknowledged to be of admiralty and maritime cognizance; and they have in these causes administered remedies which differ in no essential respect from the remedies which have heretofore been considered as peculiar to admiralty courts. This authority has been exercised under State statutes, and not under any claim of a general common-law power in these courts to such a jurisdiction.

It is a little singular that, at this term of the court, we should, for the first time, have the question of the right of the State courts to exercise this jurisdiction, raised by two writs of error to State courts, remote from each other, the one relating to a contract to be performed on the Pacific Ocean, and the other to a collision on the Mississippi River. The first of these cases, The Moses Taylor, had been decided before the present case was submitted to our consideration.

The main point rules in that case is, that the jurisdiction conferred by the act of 1789, on the District Courts, in civil causes of admiralty and maritime jurisdiction, is exclusive by its express terms, and that this exclusion extends to the State courts. The language of the ninth section of the act admits of no other interpretation. It says, after describing the criminal jurisdiction conferred on the District Courts, that they 'shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, when the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden.' If the Congress of the United States has the right, in providing for the exercise of the admiralty powers, to which the Constitution declares the authority of the Federal judiciary shall extend, to make that jurisdiction exclusive, then, undoubetedly, it has done so by this act. This branch of the subject has been so fully discussed in the opinion of the court, in the case just referred to, that it is unnecessary to consider it further in this place.

It must be taken, therefore, as the settled law of this court, that wherever the District Courts of the United States have original cognizance of admiralty causes, by virtue of the act of 1789, that cognizance is exclusive, and no other court, state or national, can exercise it, with the exception always of such concurrent remedy as is given by the common law.

This examination of the case, already decided by this court, establishes clearly the following propositions:

1. The admiralty jurisdiction, to which the power of the Federal judiciary is by the Constitution declared to extend, is not limited to tide-water, but covers the entire navigable waters of the United States.

2. The original jurisdiction in admiralty exercised by the District Courts, by virtue of the act of 1789, is exclusive, not only of other Federal courts, but of the State courts also.

3. The jurisdiction of admiralty causes arising on the interior waters of the United States, other than the lakes and their connecting waters, is conferred by the act of September 24th, 1789.

4. The admiralty jurisdiction exercised by the same courts, on the lakes and the waters connecting those lakes, is governed by the act of February 3d, 1845.

If the facts of the case before us in this record constitute a cause of admiralty cognizance, then the remedy, by a direct proceeding against the vessel, belonged to the Federal courts alone, and was excluded from the State tribunals.

It was a case of collision between two steamboats. The case of The Magnolia, to which we have before referred, was a case of this character; and many others have been decided in this court since that time. That they were admiralty causes has never been doubted.

We thus see that every principle which is necessary to a decision of this case has been already established by this court in previous cases. They lead unavoidably to the conclusion, that the State courts of Iowa acted without jurisdiction; that the law of that State attempting to confer this jurisdiction is void, because it is in conflict with the act of Congress of September 24th, 1789, and that this act is well authorized by the Constitution of the United States. Unless we are prepared to retract the principles established by the entire series of decisions of this court on that subject, from and including the case of The Genesee Chief, down to that of The Moses Taylor, decided at this term, we cannot escape this conclusion. The succeeding cases are in reality but the necessary complement and result of the principles decided in the case of The Genesee Chief. The propositions laid down there, and which were indispensable to sustain the judgment in that case, bring us logically to the judgment which we must render in this case. With the doctrines of that case on the subject of the extent of the admiralty jurisdiction we are satisfied, and should be disposed to affirm them now if they were open to controversy.

It may be well here to advert to one or two considerations to which our attention has been called, but which did not admit of notice in the course of observation which we have been pursuing without breaking the sequence of the argument.

1. It is said there is nothing in the record to show that the Hine was of ten tons burden or upwards, and that, therefore, the case is not brought within the jurisdiction of the Federal courts. The observation is made, in the opinion of the Supreme Court of Iowa, in reference to the provision of the act of 1845, which that court supposed to confer jurisdiction on the Federal courts in the present case, if it had such jurisdiction at all. We have already shown that the jurisdiction is founded on the act of 1789. That act also speaks of vessels of ten tons burden and upwards, but not in the same connection that the act of 1845 does. In the latter act it is made essential to the jurisdiction that the vessel which is the subject of the contract, or the tort, should be enrolled and licensed for the coasting trade, and should be of twenty tons burden, or upwards. In the act of 1789, it is declared that the District Courts shall have jurisdiction in admiralty of seizures for violations of certain laws, where such seizures are made on rivers navigable by vessels of ten tons burden or upwards from the sea. In the latter case, the phrase is used an describing the carrying capacity of the river where the seizure is made. In the former case, it relates to the capacity of the vessel itself.

2. It is said that the statute of Iowa may be fairly construed as coming within the clause of the ninth section of the act of 1789, which 'saves to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it.'

But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common-law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding in rem. The statute provides that the vessel may be used and made defendant without any proceeding against the owners, or even mentioning their names. That a writ may be issued and the vessel seized, on filing a petition similar in substance to a libel. That after a notice in the nature of a monition, the vessel may be condemned and an order made for her sale, if the liability is established for which she was sued. Such is the general character of the steamboat laws of the Western States.

While the proceeding differs thus from a common-law remedy, it is also essentially different from what are in the West called suits by attachment, and in some of the older States foreign attachments. In these cases there is a suit against a personal defendant by name, and because of inability to serve process on him on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may be rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common-law court of the State.

Such actions may, also, be maintained in personam against a defendant in the common-law courts, as the common law gives; all in consistence with the grant of admiralty powers in the ninth section of the Judiciary Act.

But it could not have been the intention of Congress, by the exception in that section, to give the suitor all such remedies as might afterwards be enacted by State statutes, for this would have enabled the States to make the jurisdiction of their courts concurrent in all cases, by simply providing a statutory remedy for all cases. Thus the exclusive jurisdiction of the Federal courts would be defeated. In the act of 1845, where Congress does mean this, the language expresses it clearly; for after saving to the parties, in cases arising under that act, a right of trial by jury, and the right to a concurrent remedy at common law, where it is competent to give it, there is added, 'any concurrent remedy which may be given by the State laws where such steamer or other vessel is employed.'

THE JUDGMENT IS REVERSED, and the case is remanded to the Supreme Court of Iowa, with directions that it be

DISMISSED FOR WANT OF JURISDICTION.

title: The Hine v. Trevor/Opinion of the Court


text: Talk:The Hine v. Trevor/Opinion of the Court


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Newell v. Nixon

ERROR to the Circuit Court for the Eastern District of Louisiana; the case being thus:

By the Civil Code of Louisiana it is enacted—

1. That actions 'for the delivery of merchandise or other effects shipped on board any kind of vessel. . . are prescribed by one year.'

2. That conventional interest shall in no case exceed eight per cent., under pain of forfeiture of the entire interest so contracted.

With these provisions in force, Nixon sued Newell, attaching as his property the steamboat Hill; and setting forth by petition filed April 20th, 1857:

1. That Newell was indebted to him $2585, with interest from January 11th, 1855, at the rate of eight per cent., for this, to wit, that on the said day the said Newell and one Hamilton, since deceased, being co-owners of the steamboat Hill,. . . and in such capacity, viz., as owners, made their note in his favor for the above-named sum, which would appear by reference to the note annexed and made part of the petition.

2. That independently of this, Newell was indebted in the same sum for this-that he, Nixon, had shipped, at New Orleans, on the said steamboat, of which Newell and one Hamilton were owners, a large quantity of salt, which was never delivered at its destination.

The note, which was annexed to the petition, was for the amount above stated, and was signed 'Newell & Hamilton, owners,' but was made payable with interest at the rate of ''ten per cent. per annum''.

Newell set up as defence that he never was a member of any firm known as Newell & Hamilton; and that no person had authority to bind him under any such signature; and, moreover, that the cause was barred by the 'prescription' (or 'limitation,' as it is called in many States), of one year.

The court found as fact that the note was not signed by the defendant, Newell, but by Hamilton, now dead; that these two persons had no commercial partnership; that they did not transact the business of the boat under a social name, and were not accustomed to sign notes in this form; but that they were simply part owners in the Hill-Newell owning three-fourths and Hamilton one.

The court found, further (no bill of lading being produced and the evidence being of witnesses who received the salt), that the salt was shipped as alleged but arrived at an intermediate port in bad condition, where it was taken by the agent of the owners of the Hill, who disposed of the same with their consent and for their account, the plaintiff having refused to receive it on account of its bad condition; that the consideration of the note was the sum due by the steamboat and owners for the salt not delivered; that the defendant was aware of the making of the note and of its consideration; that there was no evidence of his dissent from the act. It was shown also that after the death of Hamilton, his administrator made a settlement with Nixon and transferred to him Hamilton's interest in the steamboat, for which Nixon had agreed to pay 'the debts and liabilities of the boat.' This settlement took place September 22d, 1856.

The objections made below to the claim were:

1. That the defendant, Newell, not having been in any sense a partner of Hamilton, the note signed by Hamilton did not bind Newell.

2. That no bill of lading had been produced; and that one was necessary.

3. That the suit was barred by prescription or limitation of one year.

The court (Campbell, J.), as to the first point, admitted that as Newell was not a partner, in any sense, of Hamilton, the note could not bind Newell, unless he was connected with it by testimony other than itself. But it thought that the special facts of the case did so connect and make him liable. The term 'boat,' in the contract by which Newell assumed to pay 'the debts and liabilities of the boat,' the learned judge considered as meaning those binding the owners on account of their interest in the boat. The assumption had been made on an adequate consideration. The note on its face expressed an obligation affecting the boat, and it was given in recognition of such a liability.

In regard to the second point, the learned judge did not consider the production of the bill of lading essential to the support of the action. The suit had not been brought on the contract of shipment, but to collect the sum acknowledged to be due in consequence of the breach of contract.

3. To the argument of prescription the court said nothing.

Judgment having been given accordingly, for the plaintiff, the same points were again presented here on exception; an additional point being made, to wit, that the court erred in allowing eight per cent. interest.

Mr. Reverdy Johnson, who filed a brief of Mr. Marr, for the plaintiff in error:

1. As there was no commercial partnership between the defendant and Hamilton, and as they did not transact the business of the boat under a social name, Newell was not bound by the note, and, if he was liable to plaintiff, that liability must rest solely upon the original consideration, the shipment, consignment, and breach set forth in the petition. The note itself proved nothing against the defendant; and the plaintiff was bound to prove such facts as would constitute legal responsibility on the part of defendant; that is to say, was bound to prove the shipment, the consignment, the breach, and consequent damages, exactly as if no such note had been given. He did not do this.

2. The bill of lading was not produced; an extraordinary fact in the case of any large shipment. Nor does the plaintiff allege that he was the owner of the salt. In the absence of proof to the contrary, the consignee would be presumed to be the owner. The legal title is in him; and the mere shipper has no interest in the contract of affreightment, or in the delivery of the cargo. If the defendant was liable to the plaintiff, it was as a common carrier, for the damages resulting from the breach of the specific contract alleged. The best proof of that contract would have been the bill; and without in some way accounting for the failure to produce it, the plaintiff ought not to have been allowed to introduce secondary and oral proof of the shipment. His character as shipper does not give him such an interest in the property as to enable him, upon that mere allegation, to maintain an action. The consignee might sue and recover upon simply alleging and proving the consignment to him, and failure to deliver; but if the shipper sues, he must allege and prove property in himself. This court may well presume, in the absence of a contrary showing, that every important allegation has been proven to the satisfaction of the triers, when there is a general finding in favor of plaintiff; but it will certainly not presume in favor of plaintiff, that an important fact, essential to his right to recover, which he has not alleged, was proven.

3. As there was no proof of demand having been made of defendant, and no pretence that he ever acknowledged his liability to plaintiff on this claim, there is nothing to take it out of the prescription; and the demand was barred.

4. The court below erred in allowing eight per cent. interest, even if the proof makes out the liability of the defendant.

The suit was upon the note, and one of two things is true in the matter. Either the note is obligatory upon Newell; and in that event it is void, so far as interest is concerned, because it stipulates for ten per cent.; or, it is not obligatory on him; and in that event there is no proof of a written agreement, or of any other agreement to pay conventional interest. Either there is no proof of an agreement to pay interest, or there is proof of an agreement to pay usurious interest, which is prohibited by the law of Louisiana.

In Reid v. Duncan, the Louisiana courts say, in reference to the law against usury: 'The statute is prohibitory. Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed. The agreement to pay usurious interest being in violation of a prohibitory law, we can give it no effect whatever.'

This case arose and was decided under Art. 2895 of the Civil Code, which affixed no penalty to the agreement to pay usurious interest. But the law applicable in this case, attaches as a penalty the forfeiture of the entire interest so contracted. So utterly void is such an agreement, under this statute, that the debtor, if he has actually paid the usurious interest, may sue for and recover it within twelve months.

Without written proof of an agreement to pay it, conventional interest cannot be recovered. An agreement to pay ten per cent. cannot be maintained as a valid contract to pay eight per cent. If the written proof establishes an agreement prohibited by law, the court can give it no effect whatever, but must declare it void in toto. In Reid v. Duncan, already cited, the court say: 'We cannot say that we will let the convention stand up to the highest limit permitted by the law, and disregard it for so much as it exceeds the legal limit. The convention is a whole, and the nullity covers the whole.'

Will it be said that there was no plea of usury in this case? That is so, and it is so for two reasons: 1st. Newell did not admit that the note was obligatory upon him; consequently he could not have pleaded that he had made an agreement to pay usurious interest. 2d. As the note itself, which is the only agreement touching interest, was exhibited as part of the petition, and offered in evidence, it furnishes proof of a stipulation which the law prohibits, and which the courts must reprobate. If the note were obligatory upon Newell the case would be exactly analogous, so far as the interest is concerned, to one in which a note offered in evidence should state upon its face that it is given for money lost at play. The proof of indebtedness disclosing as agreement which the courts cannot enforce, no special plea of illegality would be necessary.

Mr. Janin, contra:

I. It is submitted that under the state of facts found by the court below, a sufficient partnership to bind Newell, even if not a truly commercial partnership did exist between Newell and Hamilton, under the laws of Louisiana. They were partners in the ownership and business of the steamboat. If so, they were bound jointly and severally for this debt, and the settlement of the claim by the note now sued on, by one of the partners, cannot, under the facts of the case, be complained of by the other partner.

But more clear is the fact, that the owners of the boat, Newell and Hamilton, acknowledging their liability, took the salt and disposed of it on their own account, and therefore, not only as carriers, but by appropriating the property to their own use, with the evident intention of indemnifying the owner, became responsible for the value of the property.

Express sanction was not wanting in this case on the part of Newell. The agent of the boat sold this damaged salt, with the consent of both of the owners of the boat, and for their account; Newell was aware of the making of the note, and the consideration for which it was given, and never objected to Nixon's claim; and, further, after Hamilton's death, in August, 1855, Hamilton's administrator transferred to him Hamilton's fourth interest in the boat and its benefits, in consequence of which Newell assumed to pay all the debts and liabilities of the boat. This includes, of course, the note sued on, which, on its face, expresses an obligation affecting the boat; and the evidence is that it was given in recognition of such a liability.

By this assumption the plaintiff in error became bound for the debt, even if he had not been originally bound by the note. Article 1884 of the Civil Code of Louisiana is in these words:

'A person may also, in his own name, make some advantage to a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of this advantage, stipulated in his favor, the contract cannot be revoked.'II. The counsel contend that the defendant in error was a mere shipper, and did not prove the ownership of the salt. This was, however, acknowledged by the settlement of Hamilton with Nixon, treating him as the party in interest.

III. As to the plea of prescription. The owners appropriated the proceeds of our salt. The action is less for a breach of contract to carry than assumpsit for money had and received. It is so plain that the prescription of one year for the mere non-delivery of merchandise cannot apply, that the court thought it needless to make any remark about the thing at all. And so it was. After Hamilton's direct acknowledgment of ownership and Newell's tacit assent to the settlement, it was certainly unnecessary to produce the bill of lading.

IV. The allowance of eight per cent. interest on the principal of the note was right. The suit was perhaps less upon the note than on the appropriation and use of our money, the proceeds of the salt sold. We asked eight per cent. interest, and no objection being made, it was given us. This was probably right.

But whether right or not, it must now stand. Objection to it is now first made here. There was no plea of usury, nor was usury set up even by argument in the Circuit Court, from which the case comes.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Newell v. Nixon


text: Talk:Newell v. Nixon

title: Talk:Newell v. Nixon


text:
Newell v. Nixon/Opinion of the Court

Judgment was rendered for the plaintiff in the court below, and the defendant in that court excepted and sued out this writ of error. Cause of action, as stated by the plaintiff in his original petition, was that the defendant, Thomas H. Newell, was justly indebted to him in the full sum of two thousand five hundred and eighty-seven dollars and eighty-five cents, with interest thereon from the eleventh day of January, 1855, until paid, at the rate of eight per cent. per annum. He also alleged that the defendant, together with one Thomas Hamilton, deceased, as the owners of a certain steamboat engaged in carrying freight and passengers for hire on the same eleventh day of January, made and executed to him their note for that sum, payable one day after date, with interest thereon at the rate of ten per cent. per annum from the date of the note, which was annexed to and made part of the petition. In his supplemental petition the plaintiff alleged that during the month of June, 1854, he shipped on board the steamer aforesaid, of which the defendant and the said Thomas Hamilton were the owners, four thousand seven hundred and sixteen sacks of salt, to be transported to Nashville, and there to be delivered to certain consignees, and that a large part of the shipment, to wit, two thousand four hundred and six sacks of the salt were never so transported and delivered: and he averred that he was entitled to recover for the value of the deficit, and that the note annexed to the original petition and signed 'Newell and Hamilton, owners,' was given by them for that consideration.

Service was made by attachment, as the defendant resided permanently out of the State, and the writ of attachment was duly served on the aforesaid steamboat, then lying in the port of New Orleans. Due return having been made by the sheriff, the defendant appeared in the case, and on his motion the property attached was discharged, he having given bond to satisfy such judgment as might be rendered against him in the suit. All these proceedings took place in the Fifth District Court of New Orleans, but the cause was shortly afterwards, on motion of the defendant, removed into the Circuit Court of the United States for that district, under the twelfth section of the Judiciary Act.

Principal defences, as pleaded in the original and supplemental answers of the defendant, were: 1. A general denial of all the allegations of the petition. 2. That the defendant never was a member of a firm or partnership called Newell & Hamilton, and that no person ever had power or authority to bind him by note or otherwise under that name or style. 3. That the supposed cause of action accrued more than one year prior to the institution of the suit, and that the same was barred by the prescription of one year.

1. Testimony was taken, and the cause was submitted to the court without the intervention of a jury. Although there was no jury trial, still the rulings of the court, under the peculiar practice in the Louisiana district, may be examined in this court upon writ of error, and the judgment reversed or affirmed by a bill of exceptions, in the same manner as if there had been a jury trial. They may also be revised here upon a state of facts found by the court, but the question presented in the court below and decided by the court must be clearly stated.

Applying that rule to the present case, it is clear that no questions are properly before the court in this case except such as are distinctly presented in the bill of exceptions. Recurring to that source, it appears that the court found from the evidence that the steamer which carried the freight was commanded by the and that he owned three-fourths part of her, and that Thomas Hamilton (since deceased), owned the remaining one-fourth; that they were not partners, and never had any partnership name for transacting the business of their steamboat, and were not accustomed to sign bills or notes for each other, but that each signed for himself whenever it was necessary to give securities concerning the business of the boat, and that the note annexed to the original petition was not in the handwriting of the defendant. Full proof, however, was introduced that the consideration of the note was the balance due by the steamboat and owners for the salt not delivered to the plaintiff, and that the defendant was aware of the making of the note and of the consideration for which it was given.

2. Second objection of the defendant under the general issue was that the plaintiff could not recover upon the consideration stated in the petition, because the bill of lading was not produced; but the court ruled that the suit was not brought on that instrument: that it was a suit to collect the sum acknowledged to be due to the plaintiff in consequence of the breach of the contract. Undoubtedly that ruling was correct, as is obvious from the allegations of both petitions. They allege the consideration of the note as the cause of action, rather than the note itself, and the judgment of the court very properly followed the declaration or petition. Reference is made in the bill of exceptions to the note and the testimony in support of it rather as evidence of the amount due to the plaintiff than as the foundation of the suit.

3. But the plaintiff in error still relies upon the plea of prescription, and insists that the action was barred by that limitation. Nothing is said upon that subject in the opinion of the court, but inasmuch as that defence was set up in the answer, and is mentioned in the bill of exceptions as one of the objections taken by the defendant to the right of the plaintiff to recover, we think the point is properly open to review in this court. Hamilton gave the note in liquidation of the demand of the plaintiff, and the bill of exceptions states that the defendant had notice of it before the death of Hamilton, who died in August, 1855. After the death of Hamilton his administrator made a settlement with the defendant, and transferred to him the one-fourth of the steamboat which belonged to his intestate, and in consideration of that transfer the defendant assumed and agreed to pay all the debts due by the boat. Express statement of the bill of exceptions is that that settlement took place on the twenty-second day of September, 1856, and that the cause of action in this case was included in that settlement. Viewing the matter in that light, the court held that the promise of the defendant to the administrator of the deceased part owner enured to the benefit of the plaintiff, and inasmuch as it was within the year next preceding the commencement of the suit, it was doubtless the conclusion of the court that the plea of prescription was not maintained. Suggestion of the defendant, however, is that there was no satisfactory proof of the acknowledgment of the specific amount stated in the petition, but the statement in the bill of exceptions is substantially otherwise, and we think the statement was fully warranted by the pleadings and evidence. Assuming the facts to be so, then it is clear that the plea of prescription is not maintained, as the petition was filed on the twentieth day of April, 1857, less than one year after the settlement was made.

4. Remaining objection of the present plaintiff, the defendant below, is that the court erred in allowing eight per cent. interest. Legal interest in Louisiana is fixed at five per cent., and the legislature has provided that 'conventional interest shall in no case exceed eight per cent., under pain of forfeiture of the entire interest so contracted.' Theory of the plaintiff in error is that the judgment was rendered upon the note, and that inasmuch as the note stipulated for the payment of ten per cent., the entire interest was forfeited. Present defendant denies that theory, and we think it cannot be sustained for the reasons already given. Judgment was rendered on the cause of action stated in the petition, as before explained, and not on the note, as assumed by the present plaintiff. Conventional interest might be eight per cent., and as the petition claimed no more, and no more was allowed by the court, the presumption, in the absence of proof to the contrary and of any exception to the decision of the court, is that the judgment is correct. Such a question might have been presented in the finding of the court, or it might have been presented in the bill of exceptions on objection to the ruling of the court. But usury was not set up, either in the original or supplemental answers, and it does not appear that any such objection was made in the court below. Parties might lawfully agree that the rate of interest should be eight per cent., and inasmuch as that rate was demanded in the petition and was allowed by the court, and no objection was taken to the ruling of the court, it must be presumed in this court, under the state of the pleadings exhibited in the record, that the court decided correctly.

The decree of the Circuit Court is therefore

AFFIRMED, WITH COSTS.

title: Newell v. Nixon/Opinion of the Court


text: Talk:Newell v. Nixon/Opinion of the Court


text:
Sparrow v. Strong (71 U.S. 584)

SPARROW brought ejectment against Strong in the District Court for the County of Story, in Nevada, for an undivided interest in a mining claim, the proceeding being in the form prevailing in Nevada, of petition, answer, and replication.

On the 21st of May, 1862, a jury, after hearing the evidence and the charge of the court, rendered a general verdict for the defendants.

On the next day afterwards, to wit, on the 22d day of May, 1862, the court pronounced judgment on the verdict.

On the 13th of November, 1862, the District Court in which the cause had been tried heard a motion for new trial, and, after argument, overruled the motion and refused the new trial, to which the plaintiffs excepted.

Two days afterwards the plaintiffs gave notice to the defendants that they (the plaintiffs) appealed to the Supreme Court of the Territory from the order of the District Court, made on the 13th of November, 1862, overruling the motion for a new trial.

On the same day of this notice the defendants filed a bond-an undertaking-for the damages and costs. In this bond they recite that it is given on an appeal from the order of the District Court, made on the 13th of November, overruling the motion for a new trial.

On the 22d of November, 1862, the counsel of both parties agreed upon a statement; and it was declared in their agreement that the statement so settled was to be used on the hearing in the Supreme Court of the appeal from the order of the District Court refusing a new trial, which order is referred to in it as made on the 13th of November, 1862.

The statement comprised:

1. The motion of the plaintiffs for a new trial, and a specification of the grounds on which it was to be sustained; among which are insufficiency of the defendants' evidence, surprise at the trial, and newly-discovered evidence.

2. Certain evidence, oral and documentary, given on the trial. There were no bills of exception to evidence embodied in the statement; but in the specification of grounds it was alleged that the evidence was excepted to.

3. The prayers of both parties for instructions to the jury on questions of law, with the answers of the judge.

4. The general charge to the jury.

5. Affidavits of the parties, and of several other persons, taken after trial, to prove surprise and newly-discovered evidence. One of these undertook to detail what a certain witness, who had been rejected, would have sworn if he had been admitted.

On this statement, apparently, the case went into the Supreme Court of the Territory. No writ of error was taken out; nor did bills of exception accompany the evidence; nor was any assignment of error made in the Territorial Supreme Court.

On the 16th of March, 1863, the Supreme Court gave judgment in the case as follows:

'On appeal from the District Court of the first judicial district in and for Story County.

'Now, on this day, that cause being called, and having been argued and submitted and taken under advisement by the court, and all and singular the law and the premises being by the court here seen and fully considered, the opinion of the court herein is delivered by Turner, C. J. (Mott, J., concurring), to the effect that the judgment below be affirmed.

title: Sparrow v. Strong (71 U.S. 584)


text: Talk:Sparrow v. Strong (71 U.S. 584)

title: Talk:Sparrow v. Strong (71 U.S. 584)


text:
Sparrow v. Strong (71 U.S. 584)/Opinion of the Court

'Wherefore it is now ordered, considered, and adjudged by the court here that the judgment and decree of the District Court of the first judicial district in and for Story County, be and the same is affirmed with costs.'

From this judgment of the Supreme Court of Nevada a writ of error, on the 14th of August, 1863, was taken here.

On the same day the plaintiff in error filed with the clerk of the Supreme Court of the Territory the assignment of errors for this court; that is to say, a specification of the grounds on which they relied here for the reversal of the decision of the Territorial Supreme Court.

In those specifications they complained that the Supreme Court of the Territory refused to reverse the judgment and order of the District Court refusing a new trial. Then followed the specific objections to the judgment and order, some of which were matters of fact.

On the same day that the writ of error from this court was taken out and the errors assigned the plaintiffs petitioned for a citation. In that citation they described the cause or subject-matter which it was their object to have reviewed in this court. They set forth that, after trial and judgment in the District Court, they moved the same court for a new trial; that it was refused on the 13th of November, 1862; that an appeal from that order was taken to the Supreme Court of the Territory; that in the latter court, on the 16th of March, 1863, judgment was rendered affirming the order of said District Court; that the plaintiffs afterwards asked for a rehearing, which was denied them; hence the writ of error.

This court, two terms ago, on the record being brought before them, by a motion to dismiss the case on other grounds assigned, doubted, on looking at the judgment of affirmance above quoted, as given in the Supreme Court of Nevada, whether it was a final judgment or decision reviewable here within the meaning of the act of Congress organizing the Territory, and which gave this court jurisdiction to review 'the final decisions' of the Supreme Court of the Territory, and ordered that point to be argued. It was accordingly argued; the argument turning chiefly on the language of the affirmance.

After the argument, this court refused to dismiss the case on the motion. It then said:

'It is insisted, on this point, that the judgment is merely an affirmance of the order of the District Court overruling the motion for new trial. If this be so, the judgment itself is, in substance and effect, nothing more; and it is settled that this court will not review such an order. The granting or refusing of new trials is a matter of discretion, with the exercise of which, by the court below, this court will not interfere. The circumstance that the discretion was exercised under a peculiar statute by an appellate court, and on appeal, cannot withdraw the case from the operation of the principles which control this court.

'But the majority of the court does not feel at liberty to disregard the plain import of the terms of the judgment rendered by the Supreme Court of the Territory. It does not purport to be an order or judgment affirming an order overruling a motion for new trial, but a judgment affirming the judgment or decree of the District Court, and the only judgment or decree, which we find in the record, is the judgment for the defendants in the action of ejectment.

'If this view be correct, the judgment of the Supreme Court is one to review which a writ of error may be prosecuted.'

The case was accordingly retained for a hearing in regular course. It was now reached, and was argued fully on its merits; the true nature of this judgment or decree of affirmance and of every part of the matter of the jurisdiction being, however, again very fully discussed on a minute examination of all parts of the record, with a presentation of the Code lof Nevada.

Messrs. W. M. Stewart, and J. S. Black, for the defendant in error, after arguing the case on merits, contended that the discussion of these ought never to arise in this court; that it was manifest from the statement of the case that the counsel of the plaintiff in error expected this court to hear them on the motion for a new trial, and to reverse the decision of the Territorial court on that point by granting, here, the new trial which, there, had been refused. The language of the decree of affirmance of itself might be doubtful if read by the distant lights of ancient technical formularies; but it was not doubtful if read by the lights which surrounded it, and which as modern ones are the true ones by which to read it. The clerk has written, the 'judgment and decree' of the District Court affirmed. But what does he mean by 'decree?' No one will pretend that there is any decree in the technical sense, in this case; that, by any proceeding here taken this court has acquired jurisdiction of a decree in chancery; yet this pretence would be no more unreasonable than the assertion that this court may entertain jurisdiction of a judgment which was not before the Territorial Supreme Court. The whole record shows that the decision of the Territorial Supreme Court was merely one of affirmance of whatever was before that court, to wit, the order overruling the motion for a new trial.

It makes no substantial difference as to the form of the decision, as long as its meaning is obvious. An order overruling a motion for a new trial is, in one sense, a judgment. It is true, it is not technically a common law judgment, but it is, nevertheless, a decision of a court, and in that sense it is a judgment, and the record shows that that was the sense in which the clerk used the words decree and judgment. For his use of the word decree shows that he had little knowledge of the technical use of legal terms. We submit, therefore, that the decision of the Territorial Supreme Court was nothing more nor less than an affirmance of an order overruling a motion for new trial, of which this court has no jurisdiction.

The mode of removing a cause, in Nevada, from an inferior court for review in a court of appellate jurisdiction was prescribed by statute and is exclusive. It may be done, the statute declares, 'as presented in this title and not otherwise.' It is worth while to look at these provisions a little. They will make it plain that what was here affirmed, was the action of the inferior court about a new trial.

Section 274, provides for appeals generally.

Section 285, shows in what cases and how an appeal may be taken to the Supreme Court from the District Court in Chancery cases.

Section 302, prescribes the mode of removing 'every final judgment, order, or decision of a District Court, except in Chancery cases,' to the Supreme Court, to be re-examined for error in law, and declares that it shall be done by writ of error.

Section 308, requires the errors to be specified.

Section 275, authorizes an appeal from an order of the District Court granting or refusing a new trial.

Section 284, prescribes how the cause shall be taken up When the appeal is made from an order.

Section 276, provides that a statement shall be made when an appeal is taken from an order, just as it was made in this case.

There was therefore no jurisdiction. If this court, when the case was last here, intimated anything else, it was on an imperfect view of the record; and now, that on such thorough view and full examination of every part of it, as the argument on the merits gives, it sees the true history of the case, it will dismiss the suit.

Messrs. G. T. Curtis and C. O'Conner, contra:

When this same cause was before the court at a former term, on a motion to dismiss, one of the grounds of the motion was that the judgment of the Territorial Supreme Court, now brought into this court for review and reversal, was an affirmance of an order of an inferior court overruling a motion for a new trial. This court, after hearing this point elaborately argued, held that the judgment of the Supreme Court was not an affirmance of an order of the inferior court overruling a motion for a new trial; that it did not purport at all to be an affirmance of an order overruling a motion for a new trial; but that the plain import of its terms is, that it affirmed a general judgment for the defendants in the action. Hence, it was held by this court that the judgment of the Supreme Court is one which can be reviewed in this court by writ of error, and the motion to dismiss was denied.

The point, then, in relation to the plain import and effect of the judgment of the Territorial Supreme Court, is really res adjudicata, and ought not to be argued.

We submit, however,

1. That the proceeding under the Nevada code, called therein a motion for a new trial, is a special method of review, intended to reach the verdict and the judgment rendered in an action, and to bring the latter up for revision in the court in which it was rendered; and that the appeal from an order overruling such an application is intended to carry into the appellate court, for its revision, the merits of the judgment of the inferior court, and to enable the appellate court to act upon that judgment.

Our view of this proceeding is, that it is intended (as a mode of review of a general judgment) for an alternative method, with like efficacy and effect with an appeal from such general judgment or a writ of error, and more convenient and more likely to be embraced, because it unties in the same proceeding relief to be given in respect to the weight of evidence, or newly discovered evidence, and relief to be given, on account purely of erroneous rulings of law. That it unites these two grounds of relief, can constitute no solid objection to the re-examination, in this court, of the pure questions of law contained in a record made under such statute provisions, and brought here by writ of error. That such is the character of this proceeding is shown, we think, by the act of Congress organizing this Territory, which act committed to the regulation of the Territorial legislature the whole subject of 'writs of error, bills of exceptions and appeals,' from the Territorial District Courts to the Supreme Court of the Territory; and by the Code of Practice, adopted November 29th, 1861, by the Territorial legislature, under authority conferred by the act of Congress aforesaid.

It was certainly competent to the Territorial legislature, under the broad authority conferred upon it, to provide any form of appeal from the District to the Supreme Court, and to give that form any scope and effect that it saw fit.

The Territorial Code of Practice, in civil cases, does not prescribe or recognize a common-law bill of exceptions; and it does prescribe and recognize a different mode of excepting to the rulings of a court at the trial of an action. It also provides three modes of bringing errors of law under review after a verdict and judgment; one of which is called a motion for a new trial. The code recognizes but one form of civil action, which it makes the same at law and in equity. It is instituted by complaint. But the distinction between suits at law and suits in equity is not abolished.

Issues are either of law or of fact. If of fact in an action at law, there may be a trial by jury.

When there is a trial of issues to a jury, the court is required to state to them all matters of law necessary for their information in giving their verdict, and to furnish to the parties a statement in writing of the points of law contained in the charge, or to sign at the time a statement of such points prepared and submitted by the counsel of either party.

This is not a bill of exceptions according to the statute of Westminster; but something quite different, and obviously intended as a substitute therefor. That it is so intended is apparent from the definition of an exception given in § 188; namely, 'an objection taken, at the trial, to a decision upon a matter of law.'

It may be taken for the future purpose of a motion for a new trial, or for the future purpose of an appeal (§ 188). It may be delivered in writing to the judge, or written down by the clerk; or it may be noted on the judge's minutes, and afterwards settled in the 'statement of the case,' provided by the code (§ 189). 'No particular form of exception shall be required' (§ 190).

After a verdict, 'judgment' is to be entered by the clerk in conformity therewith, within twenty-four hours after the verdict (§ 197), and a 'judgment is the final determination of the rights of the parties in the action' (§ 144).

'Final judgments' in the District Courts may be reviewed on appeal to the Supreme Court, by appealing from the 'final judgment' rendered in an action commenced in the District Courts, or brought there from another court; and an 'order' overruling a motion for a new trial may, also, be appealed from (§ 285). Both are intended to reach the final judgment of the District Court.

An appeal from the 'final judgment' of course opens the whole merits of the judgment. An appeal from an 'order' overruling a motion for a new trial may do this, and it also has a function beyond; it may open the whole merits of the judgment, and bring under review incidental errors not properly reviewable on direct appeal from the judgment alone. It may open only questions of fact, addressed to the discretion of the court; or it may open questions of law, addressed to the legal obligation of the court to decide rightly on the law, according as the 'statement of the case' and the motion for a new trial did or did not include questions of law. This is apparent from various sections. Hence it appears that it was not true, in the courts of this Territory, that motions for new trials necessarily involve only questions addressed to the discretion of the court. They may involve matters of discretion-as the weight of evidence, or newly discovered evidence; or they may involve rulings of law, or they may involve both, according as the 'statement' and the 'exceptions' are made up.

An appeal, therefore, from an order overruling a motion for a new trial may bring into the appellate court a record which shows erroneous rulings of law; and if the order overruling the motion for a new trial is final in its nature, reaffirming, or leaving operative the general judgment previously rendered on the verdict, it is the proper subject of an appeal; and if it be founded, in whole or in part, on rulings of law at the trial, duly excepted to, the appeal from it necessarily opens the merits of the general judgment, in respect to the exceptions so taken.

2. The Supreme Court did act on the general judgment of the District Court, and did affirm that judgment, without authority, and when it only had authority to affirm or reverse an order overruling a motion for a new trial; and for this error, if it was one, we are entitled to a reversal of the judgment entered in the Territorial Supreme Court.

It is impossible to construe the judgment entered by the Supreme Court as a mere affirmance of the order of the District Court overruling the motion for a new trial. Either the Supreme Court rightly supposed-as we conceive-that the appeal from the order brought before it the general judgment of the District Court for reversal or offirmance, or else it committed an error; for it made no order or decree in direct reference to the order overruling the motion for a new trial, but proceeded directly to the general judgment of the District Court, which was the only judgment in the record before it, and affirmed it. If the Supreme Court had intended to act only on the order appealed from, it would simply have dismissed that appeal, or have affirmed in terms the order appealed from. It did not act on the mere order, but acted on the judgment brought before it in the record; and if the plaintiffs in error had never prosecuted this writ of error, the defendants must in all time have found their final evidence of title to this property in this record of the Supreme Court of the Territory, affirming the judgment of the District Court, by which the claim of the plaintiffs was negatived.

3. It can constitute no valid objection to the examination by this court of any errors of law disclosed by this record, that it contains no sealed bill of exceptions, or that the proceeding by which the whole case was, after judgment entered, brought under review, first in the District Court and then in the Supreme Court, was denominated in the practice of those courts a motion for a new trial.

The Nevada code provides that 'no particular form of exception shall be required;' just as that of New York does, that an exception shall 'not be sealed or signed.' Both codes require the exception to be taken at the proper time, and point out how the evidence that it was taken shall be preserved; but under neither code can the judge, either before or after the judgment, be compelled to seal it. The decision in Pomeroy v. The Bank of Indiana, cannot extend to writs of error to all courts, even though their statutory practice excludes the requirement of a sealed bill of exceptions. It applies only to the ruling of those where the Statute of Westminster is of binding force.

[The learned counsel, after arguing all these and some other points with great fulness and minute citations from the code, proceeded to argue the case on its merits.]

The CHIEF JUSTICE delivered the opinion of the court.

This case was before us at the last term, upon motion to dismiss the writ of error.

The suit, originally brought in the District Court for the Territory of Nevada, was an action of ejectment for an undivided interest in a mining claim.

Upon trial, there was a verdict and judgment for the plaintiff. Subsequently, and in accordance with the statute of Nevada, a motion for a new trial was made, which was denied. An appeal was then taken to the Supreme Court of the Territory, which gave judgment affirming the judgment or decree of the District Court.

We were asked to dismiss the writ, upon the ground that this judgment affirmed only the order of the District Court denying the motion for new trial, and was, therefore, not reviewable here.

On opening the record, however, it was apparent that the judgment of the appellate court was, in terms, an affirmance of the judgment or decree of the District Court, and that the only judgment of that court, properly so called, was the judgment for the defendants in the action of ejectment.

A majority of the court declined to look beyond the plain import of the judgment of affirmance, and examine the record farther, in order to ascertain whether there was anything in it which would limit its effect to an affirmance of the order denying the motion for a new trial.

The motion to dismiss was therefore overruled; but we then observed that, if the judgment of the Supreme Court was, in substance and effect, nothing more than such an affirmance, this court could not review it; and after stating the familiar rule, that this court will not revise the exercise of discretion by an inferior court, in granting or refusing new trials, we said further: 'The circumstance that the discretion was exercised under a peculiar statute, by an appellate court, and upon appeal, cannot withdraw the case from the operation of the principles which control this court.'

The cause has now been regularly heard, and fully argued, and the first question for our consideration is that which was left undecided at the last term: 'What is the true nature and effect of the judgment of the Territorial Supreme Court?'

The record shows an action of ejectment by petition, answer, and replication-the form sanctioned by Territorial law-regularly prosecuted in a Territorial District Court, resulting in a verdict and judgment for the defendants.

The record shows, also, a motion for new trial overruled, and a notice by the plaintiffs to the defendants of an appeal, from the order overruling that motion, to the Supreme Court of the Territory, and a bond of the plaintiffs, on appeal, reciting the appeal as made from that order.

Under the laws of Nevada, appeals are allowed from orders granting or refusing new trials; but it was necessary, before an appeal could be perfected, that a statement of the case, showing the grounds of appeal, should be filed. A statement which had been used on the motion for new trial was accordingly filed, under a stipulation signed by both parties, which recited the notice of appeal as an appeal from the overruling order.

There is no paper in the record which indicates that either party understood that anything was before the appellate court except that order. Nothing else, as it seems, was intended to be brought before it by the appellants, and nothing else was understood to be by the appellees.

If, then, the decision of that court is anything more than an affirmance of the order of the District Court, it is not what was expected by either party. It must not, therefore, be held to be more, unless the principles of legal construction clearly require it.

Its terms, indeed, import an affirmance of the original judgment; but are they incompatible with a more limited sense? The decision is loosely and inaccurately expressed. It purports to affirm a judgment and decree; but there was no decree, in any proper sense of the word, in the District Court. The words 'judgment and decree' must, therefore, have been used as equivalents; and 'judgment' in such a connection, may well have been regarded as the equivalent of 'decision or order.'

It is probable, we think, that the court intended that its judgment should be understood as a simple affirmance of the order below. And such seems to have been the understanding of the appellants; for, in their prayer for a citation, on appeal to this court, they describe their 'appeal' to the Supreme Court of the Territory as 'taken for the reversal of the order,' in the District Court, and state that judgment was given 'affirming the order.' We impose, then, no impossible, or even unnatural sense on the terms of the judgment, especially when considered in connection with the whole record, when we hold it, as we do, to be nothing else than an affirmance of the order overruling the motion for new trial.

But, it was argued at bar, with ingenious ability, that this judgment, if admitted to be merely an affirmance of the order of the District Court, was, nevertheless, a final judgment, subject to review, on a writ of error, by this court. It was insisted, that under the peculiar legislation of Nevada, an appeal from an order denying a motion for a new trial, carried the orginal judgment and the whole cause before the appellate court, and that the decision, upon appeal, operated as a judgment, reversing or affirming the judgment below.

But we do not so understand that legislation. The statutes of Nevada directed the judgment to be entered within twenty-four hours after verdict, unless there was a stay of proceeding; and the direction of the statutes was observed in this case. But those statutes also provided for a motion for new trial after judgment; and the effect of granting the motion was to vacate the judgment and verdict, as in the ordinary practice it would vacate the verdict only, and so prevent the entry of judgment. With this exception, the proceeding, on motion for new trial, in the court of original jurisdiction, was not distinguishable, in any important respect, from the like proceeding in the District and Circuit Courts of the United States. There was, however, another peculiarity in respect to the finality of the proceeding. In the latter courts, the decision upon such a motion is without appeal. In the District Court of Nevada, an appeal might be taken to the Supreme Court; and, as we have seen, in case of such appeal, a statement, showing the grounds of it, must be filed, in order to perfect the proceeding.

But there is nothing in the statutes which gives, in terms, any other or different effect to the reversing or affirming order of the appellate court, than would attend the allowance or denial of the motion in the inferior court. Nor is there anything in the statutes which seems intended to give by implication any such other or different effect. On the contrary, the statutes provide for the ordinary mode of reversing the judgments of inferior courts, by appellate tribunals, upon writs of error; which would hardly have been done, if it was intended to give the same effect to appeals from decisions upon motions for new trials.

Decisions on such motions, by the District Courts, were required to be made upon such grounds of law and facts as the case might furnish; and upon like grounds were the decisions of the Supreme Court, upon appeal, required to be made. We cannot doubt that the decision of the District Court, in such a case, was the exercise of a discretion not reviewable in the Territorial Supreme Court, except under an express statute of the Territory. And we are obliged to think that the decision of the appellate court was equally an exercise of discretion upon the law and the facts, and not reviewable here in the absence of any act of Congress authorizing appeals in such cases.

This view of the preliminary question makes it unnecessary to examine the other important points in the case, which have been so ably and exhaustively discussed by counsel. We think the judgment of the Supreme Territorial Court only an order affirming the order of the District Court denying a motion for new trial, and that it is therefore not reviewable here on error.

WRIT DISMISSED.


text: Talk:Sparrow v. Strong (71 U.S. 584)/Opinion of the Court


text:
Bell v. Railroad Company

ERROR to the District Court of the United States for the Northern District of Mississippi.

The Mobile and Ohio Railroad Company, a corporation created by the laws of Alabama, was compelled, in order to reach its northern terminus, to pass through Mississippi, and the legislature being desirous that the road should be built, gave to the corporation the necessary powers to extend their line through the State. As the enterprise was one of great public utility, it was deemed important that the counties benefited by the construction of the road should have the privilege of subscribing for and holding stock in it. Provision was accordingly made for the police court of any county through which the road should be located, or of any county contiguous to it, to subscribe for stock, if the sense of the people of the county, obtained through an election, was in favor of it, and authority was given to levy a special tax to pay for the stock, if the vote was for the subscription. The sheriff of the county, who was ex-officio tax collector, was required, before he entered on the discharge of the duties imposed on him by this legislation, to execute a bond, payable to the president of the board of police and his successors in office, conditioned that he would safely keep and pay over to his order all moneys collected by virtue of the tax thus levied. The County of Pontotoc voted to subscribe for one hundred thousand dollars of stock in the road, and the board of police of the county, at their August term, 1852, levied a tax to pay for this subscription, and directed the sheriff to collect it, who, in pursuance of his instructions, did collect a certain sum of money.

The police court, for some reason not disclosed by the record, failed to make the subscription, and controversy arose with the railroad corporation because this was not done, resulting in a litigation. This litigation was finally compromised; the railroad company agreeing to release all claim aginst the county on account of any liability for stock heretofore voted for by the people of the county, to be taken by the county, and the condition of the release being that the board of police would pay over as a bonus the sum collected by the sheriff.

The president of the board accordingly, by written draft, directed the sheriff, a certain Bell, to pay to the railroad company the sum of money already collected by him under order of the board of police for the purpose of paying for stock in the said company. Bell, when called on by the agent of the company, specially appointed to settle the dispute, to know if he would accept the order, told his agent 'to get up his order and fix it up right, and if things were fixed up right, he, Bell, had the money.' When, however, the order was actually presented, Bell would not accept the order nor pay the money, alleging that the stock had been illegally subscribed for.

He had not given a bond in the form prescribed by the statute authorizing the subscription.

The company now brought assumpsit against Bell in the Federal court for the Northern District of Mississippi, to recover the sum which he had collected, setting out the order, acceptance, and non-payment; declaring also on an account stated. Evidence of the compromise and agreement was put in evidence and relied on; also the written order of the president of the police board on Bell, to pay the money to the railroad company.

The court below charged, among other things, that the police court had no authority except such as was derived from the acts of the legislature, and as such had no authority to make a compromise, and that their action therein was void. That the money in the hands of Bell vested in the company so soon as an order was made by the president of the police board on him to pay the money to the company. That Bell had no right to judge of the fact whether the stock had or had not been legally subscribed for.

Judgment went accordingly in favor of the railroad company for the sum collected by the sheriff, Bell, defendant in the suit, and he now brought the case here on error on exceptions to the charge.

The record showed that there were pleas in abatement and a demurrer to them in the case; the disposition of which was not very plain. There was also a plea to the merits subsequently put in, on which the suit went to trial, and was tried.

The case was submitted on the record on behalf of the plaintiff in error, Bell, and a printed brief of Mr. Peck, contra, who contended that, if the compromise between the railroad company and the county was made in good faith, it was binding. The company having a right to sue, and the county a right to defend, the right to settle in any way, including compromise as one way, followed; but that if this was not so, that the error had been to the prejudice of the railroad company and not to that of Bell, and that the charge having been correct on other points, there was no error for which judgment could be reversed. In other respects-the learned counsel argued-the charge was right.

Mr. Justice DAVIS delivered the opinion of the court, and after stating the case proceeded thus:

title: Bell v. Railroad Company


text: Talk:Bell v. Railroad Company

title: Talk:Bell v. Railroad Company


text:
Bell v. Railroad Company/Opinion of the Court

It is not necessary to consider the terms of the compromise as a basis of recovery; for it is very clear that a municipal corporation like the board of police could not modify or alter the stock subscription voted by the people, in the absence of power from the legislature, and as there is no pretence that this was conferred, it follows that the agreement made with the railroad company was without authority of law, and void. But the company did not rest their right to recover on this agreement, and the court expressly charged the jury that no effect could be given to it.

There is, however, aside from this agreement or compromise, a substantial ground-relied on by the court below, and sustained by the evidence-on which the judgment in this case can be supported. If the County of Pontotoc, according to the requirements of the law, voted a subscription to the stock of the railroad; the board of police levied a tax to pay for it; the tax was collected; and the president of the board instructed Bell, who was the sheriff, and had the money, to pay it to the agent of the company, who also demanded payment, then the liability of Bell is fixed, and he cannot be allowed to interpose collateral matters by way of defence. The money in the hands of Bell vested in the railroad corporation so soon as the president of the board of police drew the order, and, on presentation, he was obliged to pay. His duty was obedience. It was no part of his business to sit in judgment on the proceedings of the board of police, nor was he at liberty to constitute himself an arbiter to settle the differences that had arisen, or might arise, between the county, the tax-payers, and the company, growing out of the vote to subscribe stock, and the refusal to make the subscription.

So far as Bell was concerned, the board of police had the exclusive power over this subject; and if in the exercise of that power the president of the board directed him to pay the money to the Mobile and Ohio Railroad, he could not question the authority nor review the decision. And the omission to give the bond, as by law required, cannot affect his liability, although it may lessen the security of the company.

There is great confusion in the record in relation to the disposition of the demurrers and pleas in abatement; but, as Bell filed a plea to the merits, and the parties went to trial, all antecedent irregularities were waived.

There is no error in the record, and the judgment below is

AFFIRMED WITH COSTS.


text: Talk:Bell v. Railroad Company/Opinion of the Court


text:
Ryan v. Thomas

THOMAS brought suit against Ryan, in the St. Louis Land Court, an inferior State court of Missouri, for a tract of land in that State. The only question was as to the validity of a patent granted by the United States to a fictitious person. The inferior court held that the patent was valid; but the Supreme Court of the State, in 1857, reversed the judgment, and held that the patent to a fictitious person was a nullity. The case having been tried again in the inferior court, was again, in 1860, before the Supreme Court of the State, and it being proved that the supposed fictitious person was simply a false name assumed by an actual person, that court held that, although a patent issued to a person not in existence was a nullity, yet that a patent to a person under an assumed name was not void; and if such person should, under such assumed name, transfer the land to a purchaser, the title would enure to the latter; and they again reversed the judgment of the Land Court. The case was a third time tried in the inferior court, and, in 1864, a third time reached the Supreme Court, which affirmed the decision of that court, and declared that no new point was presented. Ryan now brought the case by writ of error here, conceiving, apparently, that this court had jurisdiction under the twenty-fifth section of the Judiciary Act, which authorizes a final a judgment or decree in any suit in the highest court of law or equity of a State to be brought here on error in point of law, provided the validity of a statute of or an authority exercised under the United States is drawn in question in the State court, and the decision is against that validity.

Mr. Coffey, for the defendant in error, moved to dismiss the case for want of jurisdiction, there being, as he argued, no question which, under the Judiciary Act, could give this court appellate jurisdiction of the case.

Mr. Blair, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Ryan v. Thomas


text: Talk:Ryan v. Thomas

title: Talk:Ryan v. Thomas


text:
Ryan v. Thomas/Opinion of the Court

We have no jurisdiction of the judgments of State courts except under the twenty-fifth section of the Judiciary Act, and, upon examining the record, we do not find that the case presented is within any clause of it.

The suit in the State court was for the recovery of a tract of land in St. Louis, Missouri. The proofs of the plaintiff consisted of a patent of the United States to one Johnson, dated January 5th, 1843; a certificate of entry by Johnson, issued by the register of the St. Louis Land Office, on the 19th of August, 1829; an assignment of the same date by Johnson and the plaintiff, indorsed upon the certificate, and a decree, upon default, of the St. Louis Land Court, in a suit by the plaintiff against Johnson, adjudging and decreeing the title to be vested in the possessor.

The defence rested upon the ground that Johnson was a fictitious person, but the court held the patent not void, if issued to a real person and transferred by his indorsement to the plaintiff, though such person in making the entry and obtaining the certificate used a fictitious name.

The patent offered by the plaintiffs seems to have been the only authority under the United States drawn in question in the State court, and the decision was in favor of its validity. It is only when, in such a case, the decision is against the authority that this court has revisory jurisdiction.

It is suggested, in the brief for the plaintiff in error, that a subsequent patent was relied on by him when defendant in the State court, and that the decision having been against that patent may be reviewed here. But we find no such patent and no such decision in the record.

DISMISSED.

title: Ryan v. Thomas/Opinion of the Court


text: Talk:Ryan v. Thomas/Opinion of the Court