Ward v. Cochran

• Decision Date: 18 December 1893
• Docket Number: No. 110,110
• Citation: 37 L.Ed. 1195,14 S.Ct. 230,150 U.S. 597
• Parties: WARD v. COCHRAN
• Court: U.S. Supreme Court

150 U.S. 597

14 S.Ct. 230

37 L.Ed. 1195

WARD

v COCHRAN.

No. 110.

December 18, 1893.

Statement by Mr. Justice SHIRAS:

This was an action of ejectment brought at November term, 1887, in the circuit court of the United States for the district of Nebraska, by Seth E. Ward, a citizen of the state of Missouri, against Elmer G. Cochran, a citizen of the state of Nebraska, to recover the possession of 20 acres of land situated in the suburbs of the city of Omaha, and described as the W. 1/2 of the N. E. 1/4 of section 4, township 15 N., range 13 E., in Douglas county, Neb.

In pursuance of the practice in that state, under which two trials in ejectment are necessary to a final determination of a question of title, a trial was had before a judge, without a jury, and a judgment was entered in favor of the defendant. This judgment was forthwith, on motion of the plaintiff, set aside, and a new trial was awarded.

At this trial the record discloses that the plaintiff sustained his side of the issue by putting in evidence a chain of title from the United States to himself, consisting of a patent of the United States to Alexander R. McCandlers, dated March 13, 1861, for a tract of land, including the piece in dispute; a deed of Alexander R. McCandlers to Michael Thompson, dated May 2, 1861, for the same tract; a deed of Michael Thompson and wife to Edward B. Taylor, dated July 5, 1862, for said tract; a mortgage of Edward B. Taylor, to Ward, the plaintiff, dated July 28, 1871, on the 20-acre tract in controversy, to secure the payment of certain promissory notes; the record of proceedings in suit by Ward, the plaintiff, against the heirs and legal representatives of Edward B. Taylor, who had died in 1872, to foreclose said mortgage, and a sheriff's deed, under decree in said suit, to Ward, the plaintiff, dated July 11, 1877; a deed of Edward A. Taylor (son and one of the heirs of Edward B, Taylor, and the only heir who had not been made a party to the foreclosure suit) to Ward, the plaintiff, dated June 25, 1885, for the 20-acre tract in dispute. It was admitted that the value of the land was $20,000 at the time of the bringing of the suit.

The defendant adduced evidence tending to show that one John Flanagan had entered on the tract in dispute in 1868, under a parol sale of said tract to him by Edward B. Taylor; that Flanagan had continued in possession of the tract until 1885, when, on November 25th of that year, Flanagan and wife conveyed the tract to the defendant by deed of that date, who entered into possession.

On December 9, 1889, the jury rendered a special verdict, in the following words and figures:

'We, the jury impaneled and sworn to try the issues joined in the above-entitled cause, do find and say that one John Flanagan, in the year 1868, entered into the possession of the west one-half of the northeast quarter of the southwest quarter of section 4, in township 15 north, of range 13th east of the 6th principal meridian, in Douglas county, Nebraska, being the land in controversy in this case, under a claim of ownership thereto, and that he remained in the open, continued, notorious, and adverse possession thereof for the period of sixteen (16) years thereafter, and until he sold and transferred the same to the defendant in this case.

'We further find that said John Flanagan and Julia, his wife, by good and lawful deed of conveyance, conveyed said premises to the defendant in this suit in 1885, and surrendered his possession to this defendant, and that said defendant has remained in the open, continuous, notorious, and adverse possession of the same under claim of ownership down to the present time. We therefore find that at the commencement of this suit the defendant was the owner of and entitled to the possession of the said premises, and upon the issues joined in this case we find for said defendant.'

On December 9, 1887, the plaintiff, by his counsel, moved for a new trial for reasons filed, and on the same day moved the court for judgment in his behalf notwithstanding the verdict.

On December 5, 1889, the motion for a new trial was overruled, and judgment was entered in favor of the defendant in pursuance of the verdict; and to said judgment a writ of error to this court was sued out and allowed.

James Hagerman and Hugh C. Ward, for plaintiff in error.

John M. Thurston and W. J. Connell, for defendant in error.

[Argument of Counsel from pages 599-602 intentionally omitted] Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

Objection is made that the bills of exception were not allowed and signed either at the trial or the judgment term, and the case of Muller v. Ehlers, 91 U. S. 249, is cited to show that we cannot consider them for that reason.

From the record it does indeed appear that the bills of exception were not allowed and signed during the term at which the judgment was rendered, but it also appears that at said term an order was entered stating that, inasmuch as the bills of exception could not be completed at that term, the time for preparing and presenting them was extended till February 1, 1890, at which time bills of exception might be allowed and signed with the same force and effect as if said action had been had within the usual time; and it also appears that on January 18, 1890, plaintiff's counsel served defendant's counsel with a copy of the bills of exception proposed, with notice that they should be presented for the judge's consideration on January 27, 1890. On that day defendant's counsel did not appear, and thereupon the court entered an order reciting the foregoing facts, and directing that the bills of exception be filed with the clerk of the court, and that defendant should have 30 days in which to file suggestions of amendment thereto, and continuing the cause till the further order of the court for the purpose of settling, allowing, and signing the bills; and it further appears that on March 1, 1890, the bills of exception were finally signed by the judge and filed. The record also discloses that the defendant protested against the action of the court in extending the time, and in allowing and signing the bill of exceptions after the expiration of the term at which the judgment was rendered.

In the case of Mulier v. Ehlers, relied on by the defendant in error, this court did hold that, because the bill of exceptions had not been signed at or during the term at which the judg- ment was rendered, it could not be considered, and expressed itself as follows: 'As early as Walton v. U. S., 9 Wheat. 651, the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was under ordinary circumstances confined to a time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions, without an express order of the court during the term or consent of the parties, save under very extraordinary circumstances. Here we find no order of the court, no consent of the parties, and no such circumstances as will justify a departure from the rule. A judge cannot act judicially upon the rights of parties, after the parties, in due course of proceedings, have both in law and in fact been dismissed from the court.'

As we have seen, the present record discloses 'an express order of the court during the judgment term, continuing the cause for the purpose of settling, allowing, signing, and filing the bills of exception,' and this case is thus brought within the ruling in Muller v. Ehlers.

Our most recent utterance on this subject was in Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, where it was held that this court would not review bills of exception signed after the time fixed by a special order of the court had expired.

As this record discloses that the exceptions relied on were taken at the trial, and that the delay was in reliance on an express order of the court, postponing the act of allowing and signing the bills, we think that we are not precluded from a consideration of the errors assigned.

A further preliminary objection is urged to the form of the bill of exceptions, which is said to be a mere transcript of the entire testimony and of the charge, and the case of Hanna v. Maas, 122 U. S. 24, 7 Sup. Ct. 1055, is cited.

In that case it was held, that, when a bill of exceptions is so framed as not to present any question of law in a form to be revised by this court, the judgment must be affirmed, but the facts of the case were thus stated: 'This bill of exceptions has been framed and allowed in disregard of the settled rules of law upon the subject. No ruling upon the evidence is open to revision, because none appear to have been excepted to; and the overruling of a motion for a new trial is not a subject of exception. The bill of exceptions, instead of stating distinctly, as required by law and by the fourth rule of this court, those matters of law in the charge which are excepted to, and those only, does not contain any part of the charge or any exception to it, and undertakes to supply the want by referring to exhibits annexed, containing all the evidence introduced at the trial, the whole charge to the jury, and notes of a desultory conversation which followed between the judge and counsel on both sides, leaving it to this court to pick out from those notes, if possible, a sufficient statement of some ruling in matter of law.'

The present record presents a very different condition of facts, as the bill of exceptions, in so far as it relates to the charge, specifies with distinctness the parts of the charge excepted to and the legal propositions to which exceptions are taken. The view we take of the case does not compel us to consider the objections taken to the admission or rejection of evidence, and we are therefore not called upon to determine whether such objections are properly presented for...