Kelsey v. Forsyth

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois.

It was an action of ejectment brought by Robert Forsyth, a citizen of Missouri, against Kelsey and Hotchkiss, to recover certain lots in the county of Peoria.

After some proceedings which it is not necessary to mention in this report, the cause came on for trial at December term, 1854, of the Circuit Court, when the parties filed the following agreement:

'And be it further remembered, that afterwards, to wit, upon the calling of this cause for trial, by the mutual agreement of the parties, and in accordance with the laws and practice of this State, a jury was waived, and both matters of law and fact were submitted to the court, upon the distinct understanding that the right of either party should be full and perfect to object to the admission of incompetent evidence, and the refusal to admit that which was competent; and with the same privilege of excepting to the rulings of the court in either case, as though the cause were tried by a jury; and with the right to either party to avail himself, in the Supreme Court, of any erroneous ruling in this court, precisely as though the cause had been submitted to a jury, and with liberty to either party, if it should be necessary to the hearing of this cause in the Supreme Court, to treat the evidence introduced in this cause in the nature of a special verdict.'

The parties then proceeded to offer their evidence, consisting of deeds, records, &c., when the court found the issue in favor of the plaintiff, and gave judgment accordingly.

The bill of exceptions taken by the defendants recited all the evidence, and concluded thus:'And thereupon defendants move the court to set aside said judgment, and grant them a new trial, for the reason that said decision was against the evidence in the case, which motion the court overruled. To all of which findings, rulings, decisions, and opinions, defendants then and there excepted, and prayed that this their bill of exceptions might be sealed, signed, and made of record; which is done, &c.

'Exceptions allowed, January 24, 1855.

'THOMAS DRUMMOND. [SEAL.]'

The cause was argued in this court by Mr. Ballance, who assigned various errors, in the judgment of the court below, relative to the merits of the case, and others in the form of proceeding. Amongst the latter, it was alleged that it was error to try the cause without a jury; and, upon the authority of Grahamv. Bayne, 18 Howard, 60, he contended that the cause must be remanded for a venire de novo.

Mr. Chief Justice TANEY delivered the opinion of the court.