Idaho Oregon Land Imp Co v. Bradbury

• Decision Date: 23 December 1889
• Citation: 10 S.Ct. 177,132 U.S. 509,33 L.Ed. 433
• Parties: IDAHO & OREGON LAND IMP. CO. v. BRADBURY et al. 1
• Court: U.S. Supreme Court

132 U.S. 509

10 S.Ct. 177

33 L.Ed. 433

IDAHO & OREGON LAND IMP. CO. v. BRADBURY et al.¹

December 23, 1889.

C. W. Holcomb and J. H. McGowan, for plaintiff in error and appellant.

S. Shellabarger and J. M. Wilson, for defendants in error and appellees.

GRAY, J.

This suit was commenced by Bradbury & Reinhart against the Idaho & Oregon Land Improvement Company, by a complaint filed in a district court of the territory of Idaho on September 24, 1883, alleging, in substance, that on April 13, 1883, the parties made an agreement in writing by which the plaintiffs agreed to construct upon the defendant's land, and on a line designated by the defendant's land, and on a line charge of the work, a ditch four miles long, eight feet wide and two feet deep, and of a certain grade and slope, at certain prices by the cubic yard for the material moved, and on other terms expressed in the agreement, a copy of which was annexed; that on May 17, 1883, the parties made a supplemental agreement, a copy of which was also annexed, increasing the rate of compensation in some respects; that on June 1, 1883, after the ditch had been completed by the plaintiffs and accepted by the defendant the parties came to a settlement, upon which it was ascertained and agreed that there was due from the defendant to the plaintiffs the sum of $16,774.49, of which $10,000 was paid, and for the rest of which the defendant gave its acceptance for the sum of $6,774.49, payable in 15 days, which was duly presented at maturity, but in no part paid, and on June 27, 1883, was protested for non-payment, and that sum, with interest at the rate of 1 1/2 per cent. a month, was now due from the defendant to the plaintiffs; and that the plaintiffs, in order to perfect a lien on the ditch and adjoining land, as security for the payment of that sum, on July 12, 1883, filed with the recorder of the county, as required by chapter 48 of the Code of Civil Procedure of Idaho territory, a claim, a copy of which was annexed to the complaint, stating the substance of the original and supplemental contracts, and the balance due as aforesaid. The complaint prayed for judgment directing a sale of the premises, and the application of the proceeds to the payment of the plaintiffs' claim, with interest as aforesaid, and costs, and 20 per cent. damages, as provided by the statutes of the territory, and also to the payment of the holders of any other liens who might come in; and that the plaintiffs might have judgment against the defendant for any deficiency in the proceeds of such sale to satisfy the amount due them; and for further relief. The answer denied the completion of the ditch by the plaintiffs, and its acceptance by the defendant, or that there was due from the defendant to the plaintiffs more than the sum of $500; and alleged that, if any settlement was made between the parties, it was under a misapprehension of facts caused by false and fraudulent statements of the plaintiffs that the ditch had been completed according to the contracts. The court submitted several special issues to a jury, who found some of them in favor of the plaintiffs, and failed to agree upon others, and returned a general verdict for the plaintiffs in the sum of $4,274.49 and interest. The court set aside the general verdict, and made and filed findings of fact, adopting as part there f the findings of the jury, as far as they went, and substantially supporting all the allegations of the complaint, and from the facts so found made the following conclusions of law: 'First. That the plaintiffs are entitled to a judgment for the sum of $10,107.52, and for costs, which includes the sum found due, interest, and protest damages; second, that the plaintiffs are entitled to a decree of foreclosure of the lien set forth in their complaint, and it is so ordered.' By the final decree, rendered at a hearing upon the pleadings, 'and upon the proofs, records, and evidence produced by the respective parties, and the court having heard the proofs necessary to enable it to render judgment herein, and it appearing to the court from the proofs herein that there is now due to the plaintiffs from the defendant the sum of $10,107.52, for principal, damages, and interest upon the debt set forth in the complaint, and that all the allegations in the complaint are true,' the court ordered a sale of the premises by public auction, the payment, out of the proceeds, to the plaintiffs, of the sum of $10,107.52, with costs and interest at the rate of 10 per cent. from the date of the decree, and the amount of any deficiency to be paid by the defendant to the plaintiffs.

The defendant moved for a new trial, for 'insufficiency of the evidence to justify the verdict and findings,' as well as for 'errors in law occurring at the trial, and excepted to.' Upon this motion, the defendant filed a statement, which was certified by the judge as 'the statement of the case,' and contained parts of the testimony given and offered at the trial, and exceptions of the defendant to its admission or exclusion; instructions given to the jury, and excepted to by the defendant; and a specification of 21 errors, touching the rulings upon evidence and the instructions to the jury, and the sufficiency of the evidence in the case and the findings of the jury to support the court's findings of fact and conclusions of law. The defendant's motion for a new trial was overruled; and the defendant excepted to the ruling, and appealed 'from the judgment and decree of foreclosure and sale' to the supreme court of the territory, which adjudged 'that the judgment of the court below be affirmed, and that the decree for foreclosure of mechanic's lien be modified so as that the lien shall hold only for the judgment, less the protest damages.' 10 Pac. Rep. 620. The defendant claimed an appeal, and sued out a writ of error.

In order to give this court jurisdiction of an appeal or writ of error, 'an authenticated transcript of the record' of the court below must, doubtless, be filed in this court at the return-term. Rev. St. § 997; Edmonson v. Bloomshire, 7 Wall. 306. In the case before us, a motion to dismiss is now made on the ground that the record is not authenticated, because neither the clerk nor the deputy-clerk made the return 'under his hand,' as well as under the seal of the court, as required by rule 8 of this court. In support of this motion, reliance is placed on Blitz v. Brown, Id. 693, in which the only certificate of authentication was a blank form, wanting both the seal of the court below and the signature of the clerk, so that there was really no authen tication whatever; and this court therefore dismissed the writ of error, but permitted the plaintiff in error to withdraw the record, for the purpose of suing out a new writ. But in the case at bar the certificate not only begins with setting out the name and office of the clerk as the maker of the certificate, but has appended to it the seal of the court, and lacks only the clerk's signature to make it conform to the best precedents. The question presented is not one of no authentication, but of irregular or imperfect authentication; not of jurisdiction, but of practice. It is therefore within the discretion of this court to allow the defect to be supplied. Considering that the motion to dismiss was not made until it was too late to take a new app al or writ of error, justice requires that the record should be permitted to be withdrawn, for the purpose of having the certificate of authentication perfected by adding the signature of the clerk.

In Idaho, as in other territories, there is but one form of civil action, in which either legal or equitable remedies, or both, may be administered, through the intervention of a jury, or by the court itself, according to the nature of the relief sought; provided, however, that no party can be 'deprived of the right of trial by jury in cases cognizable at common law.' Rev. St. § 1868; Act Cong. April 7, 1874, (18 St. p. 27, c. 80, § 1;) Code Civil Proc. Idaho 1881, §§ 138, 139, 230, 309, 353; Ely v. Railroad Co., 129 U. S. 291, 9 Sup. Ct. Rep. 293. Congress has prescribed that the appellate jurisdiction of this court over 'judgments and decrees' of the territorial courts, 'in cases of trial by jury, shall be exercised by writ of error, and in all other cases by appeal;' and 'on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certified by the court below,' and transmitted to this court with the transcript of the record. Act April 7, 1874, (18 St. pp. 27, 28, c. 80, § 2.) The necessary effect of this enactment is that no judgment or decree of the highest court of a territory can be reviewed by this court in matter of fact but only in matter of law. As observed by Chief Justice WAITE, 'we are not to consider the testimony in any case. Upon a writ...