Elliott & Company v. Toeppner (187 U.S. 327)

Elliott and others filed their petition for the adjudication of Ferdinand Toeppner as a bankrupt, in the district court of the United States for the eastern district of Michigan, which averred that Toeppner was insolvent, and that he had committed certain enumerated acts of bankruptcy under subdivisions (1), (2), and (3) of § 3a of the bankruptcy act. Toeppner answered, denying that he was insolvent at the time the petition was filed, and denying insolvency at the time of the commission of the acts charged under subdivisions (2) and (3); and at the same time filed in writing his demand for a jury trial. The issues were tried before a jury, who returned a verdict of not guilty. A motion for new trial was made and overruled, and the court entered judgment adjudging that Toeppner was not a bankrupt, and dismissing the petition. From this judgment petitioners prayed an appeal to the circuit court of appeals accompanied with an assignment of errors. No bill of exceptions was asked or taken, and no writ of error was asked or allowed.

The appeal was allowed and duly perfected by giving the bond required, and a transcript of the record was filed in the circuit court of appeals for the sixth circuit, which included, in addition to the proceedings before stated, what purported to be the evidence heard by the jury; exceptions reserved to evidence admitted or excluded; the charge of the court, and exceptions; and instructions asked and refused, and exceptions.

The errors assigned related exclusively to errors alleged to have been committed during the trial, before the jury, of the issues submitted.

By the certificate to the transcript by the clerk of the district court, and under its seal, it was certified that 'the above and foregoing is a full and true transcript of the record in the matter above entitled; that I have carefully compared the same with the original records and files of said matter in my office, and find the same to be a true transcript of the said originals and of the whole thereof, together with the original exhibits produced on the trial of said matter.'

After the transcript had been filed Toeppner moved the circuit court of appeals to dismiss the appeal, and to strike from the transcript so much as purported to set out the proceedings on the jury trial of the issues submitted to the jury. The motions coming on to be argued, the court, being in doubt, certified a statement of the foregoing facts to this court, together with the following question:

'Has this court, under the appeal granted from the judgment refusing to adjudicate Ferdinand Toeppner a bankrupt, authority to re-examine the proceedings upon the jury trial, and remand for a new trial if it shall appear from the transcript, as certified to us, that there was error in instructions given or refused, or in the admission or rejection of evidence?'

No brief was filed for appellants.

Messrs. Michael Brennan and Adolph Sloman for appellee.

Mr. Justice Fuller delivered the opinion of the court: