England v. Gebhardt/Opinion of the Court

It was decided in Babbitt v. Clark, 103 U.S. 611, that 'congress evidently intended that orders of this kind in suits at law should be brought here by writ of error, and that where the suit was in equity an appeal should be taken.' This was a suit at law, and it was therefore properly brought here by writ of error. But as a writ of error brings up for review only such errors as are apparent on the face of the record, it follows that nothing can be considered here on such a writ in this class of cases, any more than in others, that is not presented in some appropriate form by the record. This record shows an averment in the petition for removal that the parties to the suit were citizens of different states, and a finding of the court that they were not. This implies the finding of a fact upon evidence submitted upon a hearing by the court, but before the questions presented and decided at such a hearing can be re-examined on a writ of error, they must be brought into the record by a bill of exceptions, or an agreed statement of facts, or a special finding in the nature of a special verdict, or in some other way known to the practice of courts of error for the accomplishment of that purpose. Storm v. U.S. 94 U.S. 81; Suydam v. Williamson, 20 How. 428; Baltimore & P. R. Co. v. Trustees Sixth Presbyterian Church, 91 U.S. 130. That this rule is applicable to the class of cases to which that now under consideration belongs was expressly decided in Kearney v. Denn, 15 Wall. 56. The record in the case contains nothing of the kind. The affidavits, copies of which appear in the transcript, form no part of the record proper. The mere fact that a paper is found among the files in a cause does not of itself make it a part of the record. If not a part of the pleadings or process in the cause, it must be put into the record by some action of the court. Sargeant v. State Bank of Indiana, 12 How. 384; Fisher v. Cockerell, 5 Pet. 254. This may be done by a bill of exceptions or something which is equivalent. Here, however, that has not been done. It nowhere appears that the affidavits were ever brought to the attention of the court, much less that they constituted the evidence on which the ruling was made. The case is, therefore, in this respect different from Bronson v. Schulten, 104 U.S. 412, where the order setting aside the judgment referred to and identified in terms the affidavits found in the transcript as the foundation of the order which was made. Neither is the opinion of the court a part of the record. Our rule 8, § 2, requires a copy of any opinion that is filed in a cause to be annexed to and transmitted with the record, on a writ of error or an appeal to this court, but that of itself does make it a part of the record below. The order to remand is affirmed.