Aetna Fire Insurance Company v. Boon/Dissent Clifford

MR. JUSTICE CLIFFORD, MR. JUSTICE MILLER, and MR. JUSTICE FIELD dissented.

MR. JUSTICE CLIFFORD. Parties in civil cases pending in the Circuit Court, or their attorneys of record, may file a stipulation in writing with the clerk of the court, waiving a jury; and, whenever they do so, the issues of fact in the case may be tried and determined by the court without the intervention of a jury.

Where a jury is waived and the issues of fact are submitted to the court, the finding of the court may be either general or special, as in cases where an issue of fact is found by a jury; but where the finding is general, the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial.

Such rulings, if duly presented by a bill of exceptions, may be reviewed here, even though the finding is general; but the finding of the court, if general, cannot be reviewed in this court by bill of exceptions, or in any other manner, as the act of Congress provides that the finding 'shall have the same effect as the verdict of a jury' in a case where no such waiver is made. 13 Stat. 501; Insurance Company v. Folsom, 18 Wall. 237; Norris v. Jackson, 9 id. 125; Insurance Company v. Sea, 21 id. 138; Copelin v. Insurance Company, 9 id. 461.

Facts found by a jury could only be re-examined under the rules of the common law, either by the granting of a new trial by the court where the case was tried or to which the record was returnable, or by the award of a venire facias de novo by the appellate court for some error of law which intervened in the proceedings. Parsons v. Bedford, 2 Pet. 448; 2 Story, Const., sect. 1770.

Nothing, therefore, is open to re-examination in such a case, except such of the rulings of the court made in the progress of the trial as are duly presented by a bill of exceptions.

When a court sits in the place of a jury, and finds the facts, this court cannot review that finding. If there is any error in such a case, shown by the record, in admitting or rejecting testimony, it can be reviewed here; but when the court, by permission of the parties, takes the place of the jury, its finding of facts is conclusive, precisely as if a jury had found them by verdict. Basset v. United States, 9 Wall. 38.

Matters of fact under such a submission must be found by the Circuit Court and not by the Supreme Court, as the act of Congress provides that the issues of fact may be tried and determined by the Circuit Court where the suit is brought.

Goods and merchandise deposited in a two-story brick storehouse, to a large amount, were owned by the plaintiffs; and they procured the storehouse and the goods to be insured by the defendants against loss or damage by fire, in the company of the defendants, to the amount of $6,000, to be paid within sixty days after notice and proof of loss made by the assured, in conformity with the conditions of the policy, subject to the proviso that the company shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or any loss by theft at or after a fire.

On the 15th of October, 1864, the storehouse, with the goods insured, was consumed by fire, as is more fully explained in the transcript. Payment of the loss being refused, the plaintiffs instituted the present suit. Service was made; and the defendants appeared and pleaded the general issue, with notice of special matter to be offered under that plea. Pursuant to the act of Congress, the parties filed a stipulation in writing with the clerk of the court, waiving a trial by jury; and the court proceeded to try and determine the issues of fact in the case, and the statement is, that the parties and their counsel were fully heard.

By the record, it also appears that the court, upon due consideration, 'found the issues for the plaintiffs, and rendered judgment in their favor' for the sum of $9,177.50 damages and costs of suit; and that execution issued therefor. Superadded to that is the statement of the clerk, that, upon the rendering of said judgment, the opinion of the court was filed in said matter in the words and figures set forth in the printed transcript. Judgment was rendered on the 28th of April, 1874, and on the first day of June in the same year execution against the defendants was issued to the plaintiffs, which, on the 17th of August thereafter, was returned unsatisfied; and on the same day an alias execution was issued in their favor, which has not yet been returned.

Application was made to the circuit judge by the defendants, July 13, 1874, for leave to make a case, or bill of exceptions in the case, to contain the evidence given at the trial, special findings of fact and law to be signed by the court or one of the justices who presided in the trial, and to contain such exceptions thereto as the defendants may desire to make; and that the same, when made and settled, may be filed nunc pro tunc as of the term when the judgment was rendered, and for a stay of execution. Instead of granting the application, the circuit judge laid a rule on the plaintiffs or their counsel to show cause, on a day and at a place named, why the defendants should not have the leave requested in the application.

Subsequently the parties, by stipulation, changed the time and place for hearing the rule to show cause, and agreed that it might be heard by Judge Shipman, subject to the right of the plaintiffs to object to the jurisdiction of the court or any judge thereof to entertain such an application after the expiration of the term when the judgment was rendered. Due hearing was had before the district judge, and he passed an order to the effect following: that a finding of facts in the cause, with the conclusions of the court thereon, conformably to the opinion of the court heretofore filed, be prepared by the defendants and be submitted to the plaintiffs, to be approved and signed by the court at the September Term of the Circuit Court, to be holden at Hartford on the third Tuesday of September, 1874, and that the defendants have leave to prepare a bill of exceptions which shall be allowed and signed by the judge of said court at said term, which said special finding of facts and a bill of exceptions shall be made and allowed and entered of record nunc pro tunc as of the April Term, 1874, of said court, and that execution be stayed as therein provided.

In conformity with that order, the special finding of facts and the bill of exceptions exhibited in the transcript were, on the third Tuesday of September, signed, filed, and entered of record nunc pro tunc as of the previous April Term of the said court, in the words and figures specially set forth in the transcript. Just preceding the entry of the judgment, the record states that the court found the issues for the plaintiffs, and rendered judgment in their favor. Five months after that, the court allowed the defendants to prepare a special finding, and made an order that it be entered of record as of the day of the judgment rendered at the preceding term, in direct contradiction of the entry made at the judgment term.

Beyond all doubt, the finding which preceded the judgment, as set forth in the transcript, is general, and it is equally clear that the judgment was rendered on the 28th of April, in pursuance of that finding. What is now called the 'finding of facts' and the bill of exceptions were filed at the next term of the court, which was held at Hartford the following September, nearly five months after the judgment was rendered. Both of those papers were filed and entered of record subject to the objections of the plaintiffs; and the defendants sued out the present writ of error, and removed the cause into this court.

Two errors are assigned by the defendants, as follows: 1. That the court, instead of adjudging that the defendants were liable, should have decided that they were exempt from liability, by virtue of the proviso in the policy. 2. That the judgment, instead of being for the plaintiffs, should have been for the defendants.

Any discussion of the question touching the regularity of the bill of exceptions, or of any question therein raised, is wholly unnecessary, as the errors assigned do not present any question of the kind; and, if they did, it is clear that no such question could be of any benefit to the defendants, for two reasons, either of which is conclusive against the defendants: 1. Because the record does not show that the defendants objected to any ruling of the court during the progress of the trial.

Repeated decisions of this court have settled the rule that the exception must show that it was taken and reserved by the party at the trial, but that it may be drawn out and signed or sealed by the judge afterwards. United States v. Breitling, 20 How. 252; Dredge v. Forsyth, 2 Black, 563; Kellogg v. Forsyth, 2 id. 571.

2. Because the bill of exceptions was neither made, signed, nor entered of record until the next term, nearly five months after the judgment was rendered. Flanders v. Tweed, 9 Wall. 425.

Unless it appears that the objection to the ruling of the court was taken at the trial, the bill of exceptions drawn up and signed subsequently to the judgment, if it has no other foundation than a ruling of the court not objected to at the time, cannot properly be regarded as a part of the record.

Tested by these considerations, it is clear that the questions presented in the paper called the bill of exceptions must be overruled, for the reason that the paper in question was never signed, filed, or entered of record in season to constitute a part of the record.

Suppose that is so, then it is clear that there is no proper bill of exceptions in this case. Concede that, and it follows that the paper called 'finding of facts' is the only matter that remains for re-examination.

Even the defendants do not contend that the opinion of the court filed in the case, at the date of the judgment, is the special finding contemplated by the act of Congress empowering parties to waive a jury, nor do they deny that the general finding therein specified concludes the parties where there are no proper exceptions to the rulings of the court during the progress of the trial. Such a denial, if made, would be of no avail, as the act of Congress provides that the finding, whether general or special, shall have the same effect as the verdict of a jury; and every one knows that the seventh amendment provides that no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.

Confirmation of those views, if any be needed, is found in numerous decisions of this court, in which the very point as to the legal effect of a general finding of the Circuit Court is expressly adjudged and determined. Cooper v. Omohundro, 19 Wall. 65; Crews v. Brewer, id. 70; Insurance Company v. Sea, 21 id. 158.

Issues of fact in such a case may be tried and determined by the Circuit Court; and, if it be true that the general finding of the court shall have the same effect as the verdict of a jury, then it follows that the finding can only be re-examined either by a motion for a new trial in the court where the finding was made, or by the award of a venire facias de novo in the appellate court. When the finding is special, the review may also extend to the determination of the sufficiency of the acts found to support the judgment; but 'if the jury is waived, and the court chooses to find generally for one side or the other, the losing party,' says Mr. Justice Bradley, 'has no redress, on error, except for the wrongful admission or rejection of evidence.' Dirst v. Morris, 14 id. 484.

Viewed in the light of these suggestions, it is clear that the general finding in such a case concludes the right of the parties, unless there is some proper exception to the ruling of the court in the progress of the trial.

Where the finding is general, nothing is open to review here except such rulings of the court in the progress of the trial as are duly presented in a bill of exceptions, and, even when the finding is special, the re-examination can only extend to the question whether the facts found are sufficient to support the judgment. Propositions of fact found by the Circuit Court in such a case are equivalent to a special verdict, and, consequently, are irreviewable here except for the purpose of determining the single question whether they are sufficient to warrant the judgment; nor is the Circuit Court required to make a special finding, as the act of Congress provides that the finding of the Circuit Court may be either general or special, giving the Circuit Court the same power in that regard as has always been possessed by a jury. Insurance Company v. Folsom, 18 Wall. 237; 1 Archb. Pr. (2d Am. ed.) 213; Co. Litt. 228 b; Litt., sect. 386; 3 Bl. Com. 378.

Exceptions are allowed to the rulings of the court in the progress of the trial, and the provision is, that the review, if the finding is special, may also extend to the determination of the sufficiency of the facts found to support the judgment; but if there be no exceptions to the rulings of the court in the progress of the trial, and no special finding of the facts, the judgment must be affirmed, as this court has no power to re-examine any question decided by the Circuit Court.

Sufficient has already been remarked to show that there is no valid bill of exceptions in the case, and that the paper in the record called 'finding of facts' was not signed or filed until the taxt term after the general finding was made, and nearly five months after the judgment was rendered.

Redress here by writ of error can only be had when a party is aggrieved by some error in the foundation, proceedings, judgment, or execution of a suit in a court of record; and it is for that reason that the bill of exceptions is allowed, in order that certain matters resting in parol may be incorporated into the record for the inspection of the proper appellate tribunal. Suydam v. Williamson, 20 How. 427.

Matters resting in parol, like the opinion of the court, are not a part of the record, and nothing therein contained can be assigned for error. Williams v. Norris, 12 Wheat. 118; Davis v. Packard, 6 Pet. 41; Medbury v. State, 24 How. 414.

Findings of fact in the form called special findings, like a special verdict, furnish the means of reviewing such questions of law arising in the case as respect the sufficiency of the facts found to support the judgment; but, where the finding is general, the losing party cannot claim the right to review any question of law arising in the case, except such as grow out of the rulings of the Circuit Court in the progress of the trial, which do not in any sense whatever include the general finding, nor the conclusions of the Circuit Court embodied in the general finding, as the general finding is in the nature of a general verdict, and constitutes the foundation of the judgment.

No review of a judgment in such a case can be made here under the writ of error, unless is is accompanied by a special finding or an authorized statement of facts, without imposing upon this court the duty of hearing the whole case, law and fact, as on appeal in equity or admiralty, which would operate as a repeal of the act of Congress authorizing parties to waive a trial by jury, and als would violate the provision of the Judiciary Act, which prohibits the Supreme Court from reversing any case 'for any error in fact.' 1 Stat. 85.

Three propositions are admitted by the plaintiffs, which it is important to bear in mind, as follows: 1. That no formal special finding was made, signed, or filed until the commencement of the Circuit Court at the next term after the judgment was rendered, when the paper called in the transcript 'finding of facts' was signed, filed, and entered of record. 2. That it has been repeatedly decided by this court that the opinion of the court below does not constitute such a formal finding as that required in such a case. Insurance Company v. Tweed, 7 Wall. 44; Dickinson v. The Planters' Bank, 16 id. 250. 3. That the record shows that the opinion of the court was the only finding filed at the time the judgment was rendered, from which it is suggested rather than argued that the judgment was unauthorized or irregular.

But the suggestion is entirely without merit, as neither the law nor justice requires that the general finding of the court shall be in writing. On the contrary, the conclusion may be orally announced, and the direction to the clerk to enter the judgment may also be oral. Nor is it correct to suppose that the statement in the transcript, that the court, upon due consideration, found the issues for the plaintiffs, is either unauthorized or without legal effect. What is stated in the conclusion of the opinion, to wit, that the plaintiffs are entitled to judgment for the amount of the insurance, would have been sufficient to authorize the clerk to enter judgment if the announcement had been oral instead of in writing, as it was, and it is abundantly sufficient, when taken in connection with the judgment and the statement immediately preceding it, to warrant the conclusion that the issues were duly found for the plaintiffs, and that the judgment in their favor is regular, and that it was duly recorded.

Power is vested in this court, where the finding is special, to inquire and determine, on writ of error, whether the facts found are sufficient to support the judgment; but a report of the evidence, without such special finding, will not give this court jurisdiction to re-examine that question; nor will the fact that the court below stated some of the facts in an opinion accompanying the judgment alter things in the least, it appearing that the facts exhibited in the opinion were stated, not as a special finding, but rather as a ground to show why the judge came to the conclusion set forth in the record. Dickinson v. The Planters' Bank, supra.

Argument to show that the facts exhibited in the opinion filed in the case, which are not stated as a special finding, are insufficient to give jurisdiction in such a case, is unnecessary, as that proposition is admitted by the defendants. Certain facts are stated in the opinion of the court which was filed in the case, but they are not stated as a special finding. Instead of that, they are merely facts advanced, as Mr. Justice Strong said in the case last cited, as reasons why the Circuit Court came to the conclusion that the plaintiffs were entitled to judgment for the amount of the insurance.

Grant all that, and still it is insisted by the defendants that it was entirely within the power and discretion of the Circuit Court to make the order in question at the time it was made, and to put the findings of the court into more formal shape; but it is unfortunate for the defendants that the law is well settled the other way, nor do the authorities which the defendants cite, when properly applied, warrant any other conclusion.

Exceptions are prepared by the complaining party. Special findings are prepared by the court. Where the exception is duly taken and reserved at the trial, it may, in the discretion of the judge, be drawn out, and be signed or sealed by the judge afterwards. United States v. Breitling, 20 How. 252. Decided cases to the same effect re numerous.

It is a settled principle, say the court, in Walton v. United States, 9 Wheat. 651, cited by defendants, that no bill of exceptions is valid which is not for matter excepted to at the trial. We do not mean to say, remarked the court in that case, that the bill of exceptions should be formally drawn and signed before the trial is at an end. It will be sufficient if the exception be taken at the trial and noted by the court with the requisite certainty; and, where that is done, it may be reduced to form, and be signed by the judge during the term. Stanton v. Embry, 93 U.S. 548.

Authorities of the kind give no support whatever to the proposition of the defendants, in view of the facts of the case as they appear in the transcript. Judgment was rendered for the plaintiffs in the usual course, without any intimation from the court that any special finding would be filed in the case, or any request being made by the defendants for such a finding; and the record shows that the plaintiffs in the mean time had taken out execution for the amount of the judgment. Muller v. Ehlers, 91 U.S. 249. Valid exceptions can never be allowed, unless taken at the trial; and they will never be sustained, unless completed within the term.

Prompt action in respect to a statement of facts is also required; and, where it appeared that nearly three months had elapsed from the rendition of the judgment before it was filed, this court held that it was an irregularity, for which the court was bound to disregard it, and to treat it as no part of the record. Flanders v. Tweed, 9 Wall. 425.

Execution had issued in this case before the court granted the order that a special finding should be made, signed, and entered of record; and, inasmuch as the term in which the judgment was rendered had then expired, it is clear that the court below had not at that time any power supply a special finding of facts. Noonan v. Bradley, 12 Wall. 121; Washington Bridge Co. v. Stewart, 3 How. 413; Skillin's Ex'rs v. May's Ex'rs, 6 Cranch, 267; Ex parte Sibbald, 12 Pet. 488; Peck v. Sanderson, 18 How. 42; Martin v. Hunter's Lessee, 1 Wheat. 304; Roemer v. Simon, 91 U.S. 149.

Support to the theory that the special finding, if any, in such a case should be prepared and filed before or at the time the judgment is rendered, is derived from the present rule of the Court of Claims. Prior to its adoption, the finding of facts in that court was sometimes prepared and filed subsequent to the rendition of judgment, which was not satisfactory. Dissatisfaction arising, this court adopted the rule that, in all cases in which either party is entitled to appeal to the Supreme Court, 'the Court of Claims shall make and file their finding of facts and their conclusions of law thereon in open court before or at the time they enter their judgment in the case,' which provision, it is believed, is universally approved by the legal profession; but the requirement is much greater where the special finding is made by the Circuit Court, for the reason that the act of Congress provides that the findings, whether general or special, shall have the same effect as the verdict of a jury, and no one ever supposed that the judgment might precede the return of the verdict on which it is required to be founded.

MR. JUSTICE MILLER concurred with MR. JUSTICE CLIFFORD.

MR. JUSTICE FIELD agreed with MR. JUSTICE CLIFFORD and MR. JUSTICE MILLER that there were no special findings in the record which the court could consider; but as the majority of the court reached a different conclusion, and held that the case was properly here on its merits, he was of opinion that the law was with the defendant below,-that the loss incurred was within the exception of the policy.