276 U.S. 386 (1928), 342, Krauss Brothers Lumber Company v. Mellon

Docket Nº:No. 342
Citation:276 U.S. 386, 48 S.Ct. 358, 72 L.Ed. 620
Party Name:Krauss Brothers Lumber Company v. Mellon
Case Date:April 09, 1928
Court:United States Supreme Court

Page 386

276 U.S. 386 (1928)

48 S.Ct. 358, 72 L.Ed. 620

Krauss Brothers Lumber Company



No. 342

United States Supreme Court

April 9, 1928

Argued March 7, 1928




Exhibits sent by the trial court to the reviewing court may be identified and made part of the bill of exceptions by appropriate reference in the bill itself. P. 391.

18 F.2d 369 reversed.

Certiorari, 275 U.S. 513, to a judgment of the circuit court of appeals which affirmed the judgment of the district court in an action on a reparation order made by the Interstate Commerce Commission. The court below refused to pass on the merits, upon the ground that evidence involved was not in the bill of exceptions.

TAFT, J., lead opinion

MR. CHIEF JUSTICE TAFT delivered and opinion of the Court.

Krauss Bros. Lumber Company is a corporation engaged in the wholesale lumber business, to whom the Interstate Commerce Commission, on the complaint of the company, ordered the respondent railroad companies, the Mobile & Ohio Railroad and the Alabama Great Southern Railroad Company, to pay reparation in the amount of $10,356 because of unlawful demurrage charges illegally collected. The sole issue was whether any such power had been vested in the Commission as would give it jurisdiction

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to decide that the charges should be refunded. Upon the Commission's decision that it had such power, the parties, following its suggestion, filed formal stipulations under Rule V of the Commission's practice admitting the amounts of the charges, the illegality of which had been declared by the Commission, and thereupon the reparation order was made.

The view of the defendants was that the Commission had no power to order a return of these demurrage charges, since, by the common law, quite outside the functions and powers of the Commission, a carrier could reject a tender of goods for initial transportation while there were existing embargoes, and in the same way could reject a demand for reconsignment to points embargoed at the time of initial acceptance for shipment, and so demurrage had accrued until the consignees accepted actual delivery of the goods. Payment not having been made on or before December 28, 1922, as directed by the Commission, the present suit was filed by the petitioner as plaintiff against the respondents as defendants on March 20, 1923, in the United States District Court for the Northern District of Alabama. The complaint conformed to the provisions of § 16 of the Interstate Commerce Act, and contained the findings and order of the Commission as a part thereof.

The case came on for trial, demurrers to the complaint were overruled, additional [48 S.Ct. 359] counts were inserted by amendment, and a demurrer to them was also overruled. Thereupon the shipper, as plaintiff, duly introduced into the evidence the Commission's original finding and other Commission proceedings and closed its case. The respondents, over the shipper's objection that the same were incompetent, were permitted to put in evidence the original pleadings before the Commission, and the testimony and other exhibits taken and filed in the Commission's

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proceedings. Thereupon, the respondents closed their case, and the shipper duly moved for a directed verdict, which motion was overruled by the district court and an exception noted. The respondents thereupon moved for a directed verdict, which motion was granted, and the shipper duly excepted.

A writ of error to the Circuit Court of Appeals for the Fifth Circuit was then duly taken. The exhibits filed by the respondents were exceedingly voluminous, there being, among other things, a complete file of embargo circulars included as a part of the evidence which had been placed before the Commission in the hearings before it. The defeated party was anxious to avoid the printing of exhibits which it did not deem of use to the reviewing court in passing on what it considered the only issue in the case, and attempted to secure this through stipulation of counsel and by an order of court. When the case reached the circuit court of appeals, it declined to pass upon the merits of the case for the following reason:

From the above it is plain that all of the evidence upon which the case was tried is not in the bill of exceptions. The order of court sending up the documents in the original does not purport to make them a part of the bill of exceptions, the rule of this Court could not incorporate them therein, and the agreement of counsel expressly excludes them.

As applicable to the deficiency of the record here shown, the well settled rule is this. Depositions, exhibits, or certificates not contained in the bill of exceptions cannot be considered even though found in the printed transcript. The parties, by their affidavits or agreements, cannot cause that to become a bill of exceptions which is not such in a legal sense. Where instructions of the court are assigned as error on a motion to direct a verdict or otherwise, unless the entire evidence pertinent to the

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question is in the bill, the appellate court must presume that the omitted evidence justified the instruction.

Except as modified by statute, the rules as to bills of exceptions in the federal courts are the same as they were at common law. By § 17 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, 83, all the courts of the United States were given power to grant new trials in cases where there had been a trial by jury, for reasons for which new trials had usually been granted in the courts of law. This was held to adopt the common law rule on the subject. Parsons v. Bedford, 3 Pet. 433. Prior to the statute of Westminster II, 13th Edw. I, ch. 31, a writ of error at common law could be had only for an error apparent on the face of the record or for an error in fact such as the death of a party before judgment, but by that old statute, which is now to be treated as common law, it was provided that exceptions might, by bills of exceptions, be made a part...

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