Stevens v. Clark

• Decision Date: 06 March 1894
• Docket Number: 113.
• Citation: 62 F. 321
• Parties: STEVENS v. CLARK et al.
• Court: U.S. Court of Appeals — Seventh Circuit

62 F. 321

STEVENS v. CLARK et al.

No. 113.

United States Court of Appeals, Seventh Circuit.

March 6, 1894

H. S Robbins, for appellant.

Lynden Evans and Frederick Arnd, for appellees.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

BUNN District Judge.

There is in this case a preliminary question of jurisdiction to be decided. The action was one at law, to recover damages upon a contract for the delivery of ice. The case was tried before a jury in January, 1893, and a verdict rendered for the plaintiff on January 13, 1893, for $4,397.97. On February 20 1893, a motion for a new trial was overruled, and judgment entered for the plaintiff upon the verdict. On April 19th an appeal was prayed for and allowed. The case was argued upon the merits on October 5, 1893, without any objection being raised as to the jurisdiction of this court to hear the case. It was afterwards discovered by the court that no writ of error had ever been prayed for or issued, and, the attention of counsel being called to the fact, argument was had and briefs were filed on the question whether or not this court could take jurisdiction of the case by consent, without a writ of error ever having been issued. If it could, then the objection on this ground must be considered as waived by the parties having argued and submitted the case upon the merits without objection.

We are of opinion that this court has not obtained jurisdiction of the case, and that the appeal must be dismissed. The appropriate and only mode of bringing cases of law for review before this court is a writ of error. An appeal is applicable only in chancery cases. The distinction is obvious, and has been steadily observed and maintained by the United States supreme court for a century. Equity cases must be brought up by appeal, which brings up the entire record upon the facts as well as the law. Cases at law can only be brought up by writ of error, which simply brings up the record for the correction of errors of law; that is to say, a writ of error carries up nothing but questions of law, and these questions are to be determined according to the facts found in the record. An appeal carries up everything. It substitutes the higher court in place of the lower, and all questions, whether of fact or of law depending upon evidence or law, may be re-examined by the appellate court, just as they were originally examined by the lower court having original jurisdiction. This was the practice in England at the time of the adoption of our constitution, and had been for a long time; but by some oversight or omission in the original judiciary act of September 24, 1789 (1 Stat.c. 20), this distinction was not preserved, and that statute (section 22) provided generally for the review of cases going up from the circuit court, whether legal or equitable, by writ of error; so that in all cases, whether at law or in equity or admiralty, a writ of error was the proper proceeding to obtain a review in the supreme court. After this law had remained in force about 14 years, from September, 1789, to March, 1803, this distinction, which had always existed in the English practice, was found so important that congress changed the law, by act of March 3, 1803 (2 Stat.c. 40), by providing that, in cases of equity and admiralty and maritime jurisdiction, and of prize and no prize, an appeal should be allowed to the supreme court. The effect of this provision was to repeal, by implication, the law of 1789, so far as that allowed a writ of error in a case in equity or admiralty, and to harmonize the system of appellate jurisdiction, and make it conform to the ancient and well-established principles of judicial proceedings. The writ of error, in cases at common law, remains in force, and submits to the revision of the supreme court only the law. The remedy by appeal is confined to equity and admiralty cases, and brings before the appellate court the facts as well as the law. These remedies could never in the United States courts be used interchangeably. The San Pedro, 2 Wheat. 132.

There can be no doubt that the law of 1891 (chapter 517, Sec. 6), providing that the circuit court of appeals shall exercise appellate jurisdiction to review, by appeal or by writ of error, final decrees and judgments of the district and circuit courts in certain defined cases, preserves the same distinction which has hitherto so long existed, and that the proper proceeding in cases in equity is an appeal, and in cases at law a writ of error. If the language of this provision were to be construed literally, either an appeal or writ of error might be resorted to for the purpose of taking cases either at law or in equity to this court. But the provision should be construed with reference to the hitherto existing law and practice in these cases. There can be no presumption that congress intended to change the practice, unless that intention is plainly manifested by the language of the act.

The supreme court has uniformly held that it can obtain appellate jurisdiction in a case at law only by the issuing by the proper authority of a writ of error, and by filing the same in the court which rendered the judgment. Brooks v. Norris, 11 How. 204. Consent will not give jurisdiction; and if, at any time, the record does not show the necessary facts to give the court jurisdiction, the court will dismiss the case. The jurisdiction of all the United States courts is special. The supreme court and the circuit court of appeals possess no appellate power in any case unless conferred upon them by act of congress; nor can such jurisdiction, when conferred, be exercised in any other form, or by any other mode of proceeding, than that which the law prescribes. Barry v. Mercien, 5 How. 103; U.S. v. Curry, 6 How. 106.

In McCollum v. Eager, 2 How. 61, it was decided by the supreme court that a decree in chancery cannot be brought up for review by a writ of error.

In Sarchet v. U.S., 12 Pet. 143, which was an action at law upon a bond (opinion by Chief Justice Taney), it was held that the case could not be brought to the supreme court by an appeal, but must come up on writ of error, to give the court jurisdiction; and the court say in that case it had been so repeatedly held by that court.

In Ballance v. Forsyth, 21 How. 389 (opinion by Chief Justice Taney), the same doctrine was reaffirmed; and it was held, further, that where an appeal had been taken and dismissed, and a motion made to reinstate the case, and a stipulation to that effect signed and filed by the parties, that consent could not give jurisdiction where the law did not.

In Kelsey v. Forsyth, Id. 85, it was held that the agreement of parties cannot authorize the supreme court to revise a judgment of an inferior court in any other mode of proceeding than that which the law prescribes.

In Walker v. Dreville, 12 Wall. 440, the court, by Mr. Justice Miller, says:

'We have so often decided that, notwithstanding the peculiarities of the Civil Code of Louisiana, the distinction between law and equity must be preserved in the federal courts, and that equity causes from that circuit must come here by appeal, and common-law causes by writ of error, that we cannot now depart from that rule without overruling decisions and a well-established course of practice. The present case being a proceeding in equity brought here by writ of error, and not by appeal, the writ must be dismissed.'

In Bondurant v. Watson, 103 U.S. 278, and Ex parte Ralston, 119 U.S. 613, 7 Sup.Ct. 317, the same doctrine is reaffirmed, Chief Justice Waite in each case delivering the opinion. In the first of these cases the writ of error was issued in the name and bore the teste of the chief justice of the supreme court of Louisiana. The court held it had no jurisdiction of the case, because no writ of error had been issued. No writ had been issued by the supreme court of the United States. As such a writ was necessary to the jurisdiction, the suit was dismissed.

Some stress was laid in the argument of this question upon the waiver of the writ of error...