Supervisors v. Kennicott

• Citation: 26 L.Ed. 486,103 U.S. 554
• Parties: SUPERVISORS v. KENNICOTT
• Decision Date: 01 October 1880
• Court: U.S. Supreme Court

103 U.S. 554

103 U.S. 554

26 L.Ed. 486

SUPERVISORS v. KENNICOTT.

October Term, 1880

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

The facts are stated in the opinion of the court.

The case was argued by Mr. C. C. Boggs for the plaintiff in error, and by Samuel J. Crooks for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The County of Wayne, Illinois, mortgaged its swamp and overflowed lands to secure an issue of bonds by the Mt. Vernon Railroad Company. The county was in no way bound for the payment of the debt. It simply mortgaged its lands for the benefit of the company. Default having been made in the payment of the bonds, a suit was begun in the Circuit Court of the United States for the Southern District of Illinois to foreclose the mortgage. In this suit a decree was entered, June 25, 1874, finding the amount due from the company on its bonds, and directing that the lands of the county be sold and the proceeds applied to the debt. From this decree the county appealed to this court, giving a bond, with a large number of persons as sureties, in the penal sum of $40,000, conditioned according to law, a supersedeas. At the October Term 1876, the decree below was affirmed here with costs and the cause remanded. Supervisors v. Kennicott, 94 U.S. 498.

This was a suit on the appeal and supersedeas bond, the allegations in the declaration as to damages being as follows:——

'A large amount of damages hath accrued to the said plaintiffs by the failure of the said board of supervisors to make good their plea, to wit, the amount of $100,000, consisting of $40,000 of interest which accrued on said decree during the pendency of said appeal, which is wholly unpaid, and of $200,000 of said decree remaining unsatisfied by sale of the lands ordered by said decree, and of $50,000 depreciation in the value of said lands during the pendency of said appeal, and of $25,000, attorneys' fees for attending to said appeal, and $50,000 taxes on said lands during the pendency of said appeal.'

The bill of exceptions shows that the case was submitted to the court on an agreed state of facts, it being stipulated 'that pleas proper in such case were on file.' This agreed statement purported to be signed by the attorneys for the plaintiff, the attorney for the county, and the attorney for the sureties on the bond. The material to the questions presented here is as follows:

'It is further agreed, that, so far as the right of recovery in this case is concerned, it shall be deemed and considered that a sale of the lands in the decree described had been made and approved by the court before the commencement of this suit, and that the lands in the decree and mortgage and trust deed mentioned did not bring enough at said sale to satisfy and pay the amount due the complainant under the decree as holders of the bonds of said railroad company by an amount largely over the amount of the appeal bond in this cause sued on, and that the interest at the legal rate on the aggregate amount of the bonds of the railroad company found due the complainants as established by the decree during the pendency of said appeal would amount to a sum largely exceeding the amount of the appeal bond in this cause sued on.'

It was further admitted, as appears of record, that the costs of the appeal had been paid.

Upon the facts so stated and agreed the court found generally for the plaintiffs on the issue and that they had sustained damage to the amount of $40,000, the penalty of the bond. Judgment was given accordingly. To reverse that judgment this writ of error has been prosecuted.

It is contended by the defendants in error that the case cannot be re-examined here on its merits,—1, because the record does not show that a 'stipulation in writing waiving a jury' was filed with the clerk, as required by sect. 649 of the Revised Statutes; and, 2, because the finding of the court was in form general, and not special, as required by sect. 700.

1. As to the waiver of a jury. The record does contain a stipulation in writing signed by the attorneys of the respective parties, submitting the cause to the court for trial on the agreed facts. As a case cannot be submitted to the court for trial without waiving a jury, a stipulation to submit, especially if it be on agreed facts, is of itself a sufficient waiver to meet the requirements of sect. 649.

2. As to the finding. Even before the act of 1865, c. 86, sect. 4 (13 State. 501, reproduced in sects. 649 and 700, Rev. State.), it was always held that a judgment on agreed facts spread at large on the record could be reviewed here on a writ of error. United States v. Eliason, 16 Pet. 291; Stimpson v. Baltimore & Susquehanna Railroad Co., 10 How. 329; Graham v. Bayne, 18 id. 60; Suydam v. Williamson, 20 id. 427; Campbell v. Boyreau, 21 id. 223; Burr v. Des Moines Company, 1 Wall. 99. Such a statement was considered to be equivalent to a special verdict and to present questions of...