Lessee of Reed v. Marsh

IN error to the Supreme Court of Ohio, Scioto county.

This was an action of ejectment, brought in the Supreme Court of the state of Ohio, by the plaintiff in error, against the defendant in error. The declaration, common consent rule, and plea of not guilty, are in the usual form, according to the practice in Ohio. Upon these pleadings the case was tried in the Supreme Court for the county of Scioto, and a general verdict of not guilty was found for the defendant, Marsh. No bill of exceptions was prayed for by either party to the charge of the Court to the jury, nor was the evidence given to the jury made a part of the record, by special verdict, agreed statement of facts, by bill of exceptions, or any other form. After the rendition of the verdict, the plaintiff submitted a motion for a new trial; and on the following day filed his reasons with the clerk of the Court.

The Court reserved the motion for decision by the Court in bank; and the motion was, after argument and consideration, overruled.

The reasons for a new trial exhibited the title claimed by the plaintiff in the ejectment, under the ordinance of Congress and acts of Congress relative to lands in the territory northwest of the Ohio; and alleged, that by the construction of those acts which was asserted by the plaintiff, the land in controversy belonged to the plaintiff; and by a misconstruction of the statutes by the Court on the trial of the cause, the title of the defendant had been sustained.

The motion stated that the Court had refused to charge the jury upon the matters exhibited by the plaintiff to sustain his title under the acts of Congress, and upon the construction contended for in favour of the title set up by him. Other reasons for a new trial were also stated, founded on an allegation that the verdict was contrary to evidence; and that certain evidence was illegally admitted.

The reasons filed by the plaintiff for a new trial, are incorporated into the transcript of the record, which has been certified up to this Court. Appended to the record are copies of the plaintiff's patent; copies of the surveyor's field-notes of certain surveys made for the United States; copies of maps and descriptions of the land in controversy, and of the surrounding district of country; and copies of certain acts and ordinances of Congress which the clerk certifies are referred to in the plaintiff's fifth reason for a new trial, as the same remain on the files of the Court.

Mr. Vinton, for the defendant in error, moved to dismiss the cause, for want of jurisdiction.

It was a case removed to this Court from the Supreme Court of Ohio, under the 25th section of the judiciary act; and it was not before the Court on any of the principles which had been sustained and decided upon that section of the law.

The only part of the proceedings in the case, in the state Court, on which the jurisdiction of this Court is asserted to rest, is the refusal of the Court to grant a new trial, and for refusing certain instructions which were asked of the Court, upon the construction of acts of Congress in relation to lands on the north and west of the river Ohio. These instructions do not appear in the record of the cause, and the evidence that they were before the Court on the motion for a new trial, is the certificate of the clerk of the Court. The clerk has certified that they remain on the files of the Court. Does this certificate make them what he certifies them to be, a part of the record? Certainly not-nothing can be properly certified as part of the record but what appears such by the record itself.

If a party is desirous to bring his case up for revision, upon questions of law, the proper course is to take a bill of exceptions, or have an agreed case on the record.

Questions analogous to this have been brought before this Court, and have also been decided in the Courts of Massachusetts. Cited Williams vs. Jarvis, 12 Wheaton, 118. Fisher vs. Cockerell, 5 Peters, 253. M'Fadden vs. Otis, 2 Massachusetts Reports. 13 Massachusetts Reports, 50.

As to the cases in which this Court will entertain jurisdiction of cases under the 25th section of the judiciary act of 1789, cited Crowell vs. Randall, 10 Peters, 368, and the cases there referred to.

Mr. Mason, against the motion, stated that if the matters certified by the clerk were not regularly before the Court, the plaintiff in error had no case for the consideration of this Court.

By the certificate of the clerk, it appeared that in the motion for a new trial, certain acts of Congress were before the Court; and the title of the plaintiff rested upon their just construction.

In the state of Ohio there was no law which gave a writ of error to the Supreme Court of the state; and no case can be brought from that Court, but in the manner in which this case is presented.

Mr. Vinton, in reply, insisted that the record did not show that the acts of Congress were before the Court on the trial of the cause; or that the Court in their decision had done any thing which could give the Supreme Court of the United States jurisdiction of the cause: an application for a new trial, is an appeal to the discretion of the Court, and the decision of the Court upon it, is never the subject of a writ of error.

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