We are of opinion that the writ of mandamus must issue. By rules 67 and 69 of the Circuit Court for the Southern District of New York, which took effect on the first Monday of August, 1838, it is provided that, when exceptions to the opinion of the court are taken by either party on the trial of a cause, he shall not be required to prepare his bill of exceptions at the trial, but shall merely reduce the exceptions to writing, or the court will, on request, note the point, and the bill of exceptions shall afterwards be drawn up, amended, and settled, under the following regulations: The bill of exceptions shall be prepared and a copy thereof served upon the opposite party before judgment is rendered on the verdict; the opposite
A corresponding practice prevails in the Supreme Court of the State of New York, by its rules, with variations as to time. Under those rules, a case, or a case and exceptions, or a case containing exceptions, on a trial before a jury, is to be made, and a copy thereof served on the opposite party, within ten days after the trial. The party served may, within ten days thereafter, propose amendments thereto and serve a copy on the party proposing the case or exceptions, who may within four days thereafter serve the opposite party with a notice that the case or exceptions, with the proposed amendments, will be submitted at a time and place to be specified in the notice, not less than four nor more than twenty days after service of such notice, to the justice before whom the cause was tried, for settlement.
It is apparent that both parties in this case acted upon the view that the rule of practice of the Supreme Court of the State applied to the case; because the plaintiff, instead of serving on the defendant his proposed amendments to the bill within four days after the 3d of March, as required by
We are of opinion that the practice and rules of the state court do not apply to proceedings in the Circuit Court taken for the purpose of reviewing in this court a judgment of the Circuit Court, and that such rules and practice, embracing the preparation, perfecting, settling, and signing of a bill of exceptions, are not within the "practice, pleadings, and forms and modes of proceeding" in the Circuit Court which are required, by § 914 of the Revised Statutes, to conform "as near as may be" to the "practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State" within which the Circuit Court is held, "any rule of court to the contrary notwithstanding."
This court has had occasion several times to construe § 914. In Nudd v. Burrows, 91 U.S. 426, a state statute required a judge to instruct a jury only as to the law of a case, and provided that the written instructions of the court should be taken by the jury in their retirement and returned with the verdict, and that papers read in evidence might be carried from the bar by the jury. The court charged the jury upon the facts
In Indianapolis Railroad Co. v. Horst, 93 U.S. 291, a state statute prescribed that the judge should require the jury to answer special interrogatories in addition to finding a general verdict. This court held that that provision did not apply to the courts of the United States; and that the act of Congress did not apply to a motion for a new trial, nor affect the power of the Circuit Court to grant or refuse a new trial in its discretion. This last point was again so ruled in Newcomb v. Wood, 97 U.S. 581.
In harmony with the foregoing decisions, we are of opinion that § 914 does not extend to the means of enforcing or revising a decision once made by the Circuit Court. Section 914 does not extend to proceedings to enforce a judgment, because by § 916 special provisions are made as to a remedy by execution or otherwise, to reach the property of a judgment debtor, by borrowing from the laws of the State only those remedies then already existing, or which should thereafter be adopted by general rules of the Circuit Court. Lamaster v. Keeler, 123 U.S. 376. The object of § 914 was to assimilate the form and manner in which the parties should present their claims and defence, in the preparation for the trial of suits in the Federal courts, to those prevailing in the courts of the State. As we have seen, it does not include state statutes requiring instructions to the jury to be reduced to writing, or those which permit such instructions and certain papers read in evidence, to be taken by the jury when they retire, or those which require the jury to be directed, if they return a general verdict, to find specially upon particular questions of fact involved in the issues; and, as it does not apply to a motion for a new trial, nor affect the power of the Circuit Court to grant or refuse a new trial at its discretion, so it does not cover any
These views were adopted by the Circuit Court for the Southern District of New York, in Whalen v. Sheridan, 18 Blatchford, 324, and by the Circuit Court for the District of Massachusetts, in United States v. Train, 12 Fed. Rep. 852.
In the present case, the defendant prepared and served its bill of exceptions within the forty days from January 25. The expression "prepare and serve," in the order allowing the forty days, clearly meant, in view of rules 67 and 69 of the Circuit Court, that the proposed bill was to be prepared and served on the opposite party within the forty days, so that he might propose amendments to it within the time prescribed by the rules. It was so prepared and served within the forty days. It was retained by the plaintiff for ten days after its service. He then obtained, by stipulation, from the defendant, ten days' more time to prepare and serve amendments. The proposed amendments were served on the tenth day and the notice of settlement was accepted, written admission of its service was given and it was retained. Under these and the other circumstances above detailed, we think the defendant was entirely regular in its practice and that the plaintiff was estopped from raising the objection which he made before Judge Shipman.
On the facts of the present case, the decision in Müller v. Ehlers, 91 U.S. 249, has no application. In that case, on a trial by the court, without a jury, of an action at law, there was a general finding for the plaintiff, and a motion for a new
In this view of the case, the question whether the term at which the verdict was rendered expired on the 25th of February, being the Saturday next preceding the last Monday of February, or on the 31st of March, being the Saturday next preceding the first Monday of April, is immaterial. The rules of the Circuit Court clearly contemplate proceedings to perfect a bill of exceptions within the times limited by those rules, without reference to the expiration of a term. By § 658 of the Revised Statutes, terms of the Circuit Court are appointed to be held in the Southern District of New York on the first Monday in April and the third Monday in October, "and for the trial of criminal causes and suits in equity" on the last Monday in February. The defendant contends that the October term terminated at the beginning of the February term, and the plaintiff contends that the October term terminated at the beginning of the April term. We do not find it necessary to decide this question.
The writ will issue in the terms of the prayer of the petition, commanding the judge to settle the bill of exceptions tendered by the defendant, according to the truth of the matters which took place before him on the trial of the aforesaid action, and, when so settled, to sign it as of the 10th day of April, 1888, that being the day when the proposed bill and proposed amendments were submitted to him for settlement.
Comment
User Comments