Smith v. Weeks, 36.

• Decision Date: 10 January 1893
• Docket Number: 36.
• Citation: 53 F. 758
• Parties: SMITH v. WEEKS.
• Court: U.S. Court of Appeals — First Circuit

53 F. 758

SMITH v. WEEKS.

No. 36.

United States Court of Appeals, First Circuit.

January 10, 1893

At Law. Action brought in the superior court of Suffolk county Mass., by Sidney Smith against Henry De Forrest Weeks, as executor of the will of Joseph C. Delano, to recover the value of certain shares of stock in the Boston Soapstone Furnace Company. The declaration also contained counts for salary alleged to be due plaintiff, and for a certain sum as profits in the business. But these counts were waived, and plaintiff relied solely upon the first-mentioned cause of action. The cause was removed by defendant, on the ground of diverse citizenship, to the federal circuit court. The cause was then referred to an auditor, whose findings were in favor of defendant, and, after the filing of his report, the following agreement was signed by the attorneys for the parties respectively:

'It is agreed by and between the parties that this case may be submitted to the court on the auditor's report for the determination of the court on the question whether the rulings of the auditor, Henry W. Bragg, Esq., as stated in his report as to the right of the plaintiff to recover, are correct. The plaintiff reserves his right to go to the jury if the court shall decide said rulings of the auditor to be erroneous. If the court shall sustain the findings of the auditor, judgment is to be entered for the defendant.'

Thereafter the court approved the auditor's report and findings, and entered judgment for defendant according to the agreement. The plaintiff excepted to this ruling, took a bill of exceptions, and brought the case, on writ of error, to this court. Here the cause was submitted on briefs and the printed record, and thereafter the court entered an order permitting counsel to file briefs touching the jurisdiction of the court, under Rev. St. Sec. 649. That section read as follows:

'Issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.'

Instead of filing briefs on the question of jurisdiction, counsel signed an agreement to amend the record, in the following terms:

'It being the intention of the parties in the above-entitled case to submit this question of law to the court upon the facts as found by the auditor, it is agreed that the agreement may be amended nunc pro tunc by striking out the words, 'The plaintiff reserves his right to go to the jury if the court shall decide said rulings of the auditor to be erroneous,' and inserting in place thereof, 'Jury waived."

There was a hearing before the court as to the effect of this agreement, whereupon the following order was entered:

'Counsel for plaintiff in error may file motion with agreement and other papers by Tuesday, November 22d, and cause same to be printed under the rule. Counsel for plaintiff in error may file brief on motion by Monday, November 28th, on the following points: (1) Whether the court can take cognizance of the motion to amend; (2) as to the effect of the agreement now in the record. Counsel for defendant may file brief in reply by November 30th.'

Thereafter counsel for plaintiff filed a motion to remand to the circuit court, which, after reciting the proceedings below and in this court, and setting out the two agreements, proceeded as follows:

'That counsel for plaintiff has examined the questions referred to in said order, and is convinced that the allowance of said amendment to the original agreement is not within the recent decisions of this court upon the subject of amendments. Wherefore plaintiff moves this court that the case be remanded to the circuit court, to enable him to move therein for leave to amend the agreement of June 22, 1892, in accordance with the stipulation of October 29, 1892, filed in this court.'

A. E. Denison, for plaintiff in error.

1. It seems very clear that, in view of the inability of this court to amend the agreement of June 22, 1892, this case has proceeded upon a mistake of counsel on both sides.

2. The record shows that it was not in the contemplation of the parties that the matters in dispute should be submitted to the circuit court to be finally determined, for, upon the announcement of the decision of the learned judge who presided, the plaintiff excepted thereto, and his exception was allowed.

3. A case cannot be submitted to the court for trial without waiving a jury by section 649 of the Revised Statutes. Supervisors v. Kennicott, 103 U.S. 556.

4. While the parties did intend-- and the purpose of the present motion is to carry out such intention-- to submit the questions involved to the court without a jury, as declared by the agreement on file in this court, the agreement under which they acted was insufficient for that purpose, and the learned judge had no authority to order judgment for the defendant.

5. Wherefore plaintiff respectfully claims that there was a mistrial, based upon mistake of court and counsel on both sides, and only by granting his motion can such mistake be rectified, and his rights be properly determined.

Francis S. Hesseltine, for defendant in error.

1. (a) While the counsel for the defendant in error consented that the agreement made in the circuit court might be changed here, he objects to the case being remanded for alteration of the agreement in the circuit court. Parties cannot by consent give this court jurisdiction. There is no rule or law which will justify this so-called 'amendment,' and nothing that requires it.

The proposition is not to amend the summons, writ, declaration, return, process, judgment, or other proceeding for any defect or want of form which is allowed by sections 948 and 954 of the United States Revised Statutes, but to materially change an agreement of the parties to make a substantially new and different agreement. While the law and practice allowing amendments is very broad, it does not go to this extent, and there is no law or discretion which can justify it.

The parties are presumed to have understood the law and practice when they made the agreement, and what they intended is plainly expressed. There is no defect or want of form to correct. While amendments are allowed, so that the court may cure defects and give judgment according as the right of the cause and the matter in law shall appear to it, without regarding any defect or want of form, it cannot go to the length to change an agreement to enable a party, if possible, to reverse on a writ of error a judgment assented to under an agreement in the court below.

(b) If the allowance of this motion would cure any defect in the proceedings, and would empower this court to correct any error so as to review and give judgment, it might be well to consider the question of amendment; but this alteration of the agreement, if made, would be of no avail to effect the judgment or to give this court jurisdiction.

The amendment proposed, if allowed, would not materially change the status of the case. It still remains a submission to the court on the rulings of the auditor, and an agreement for judgment by the court for the defendant if the court shall sustain the ruling. Such an agreement is in the nature of a reference, and no writ of error from the decision of the judge would lie to this court. The striking out of the conditional reservation to go to the jury if the court should decide the rulings erroneous would be of no advantage to the plaintiff in error to change the judgment of the court or sustain his writ of error; and on the agreement of submission, if so amended, no exception could be taken from the decision of the judge, nor writ of error to this court.

This court can obtain jurisdiction of this cause by no other mode of proceeding than that which the law prescribes; and, if the parties desire to preserve the right to review and revise in the circuit court of appeals the rulings and decisions of the circuit court, they must proceed according to the methods and rules prescribed by the United States Revised Statutes. guild v. Frontin, 18 How. 135; Suydam v. Williamson, 20 How. 428.

2. As to the effect of the agreement now in the record, this was an agreement to submit the law on the facts as found by the auditor to the court; an agreement in the nature of a reference; an agreement to constitute the judge an arbitrator or referee, whose award is final and conclusive between them. Graham v. Bayne, 18 How. 62.

No facts were to be found and determined by the court but the single question whether the findings of the auditor, as reported, were correct; and it was agreed that, if the court should so find, judgment was to be entered for the defendant. It was final, and from that judgment no writ of error will lie. There was no reservation, agreement, or consent, if one could have been made, for the review and the revision of the judgment of the judge of the circuit court; no agreement that it might be taken to ...