Sparrow v. Strong (71 U.S. 584)

SPARROW brought ejectment against Strong in the District Court for the County of Story, in Nevada, for an undivided interest in a mining claim, the proceeding being in the form prevailing in Nevada, of petition, answer, and replication.

On the 21st of May, 1862, a jury, after hearing the evidence and the charge of the court, rendered a general verdict for the defendants.

On the next day afterwards, to wit, on the 22d day of May, 1862, the court pronounced judgment on the verdict.

On the 13th of November, 1862, the District Court in which the cause had been tried heard a motion for new trial, and, after argument, overruled the motion and refused the new trial, to which the plaintiffs excepted.

Two days afterwards the plaintiffs gave notice to the defendants that they (the plaintiffs) appealed to the Supreme Court of the Territory from the order of the District Court, made on the 13th of November, 1862, overruling the motion for a new trial.

On the same day of this notice the defendants filed a bond-an undertaking-for the damages and costs. In this bond they recite that it is given on an appeal from the order of the District Court, made on the 13th of November, overruling the motion for a new trial.

On the 22d of November, 1862, the counsel of both parties agreed upon a statement; and it was declared in their agreement that the statement so settled was to be used on the hearing in the Supreme Court of the appeal from the order of the District Court refusing a new trial, which order is referred to in it as made on the 13th of November, 1862.

The statement comprised:

1. The motion of the plaintiffs for a new trial, and a specification of the grounds on which it was to be sustained; among which are insufficiency of the defendants' evidence, surprise at the trial, and newly-discovered evidence.

2. Certain evidence, oral and documentary, given on the trial. There were no bills of exception to evidence embodied in the statement; but in the specification of grounds it was alleged that the evidence was excepted to.

3. The prayers of both parties for instructions to the jury on questions of law, with the answers of the judge.

4. The general charge to the jury.

5. Affidavits of the parties, and of several other persons, taken after trial, to prove surprise and newly-discovered evidence. One of these undertook to detail what a certain witness, who had been rejected, would have sworn if he had been admitted.

On this statement, apparently, the case went into the Supreme Court of the Territory. No writ of error was taken out; nor did bills of exception accompany the evidence; nor was any assignment of error made in the Territorial Supreme Court.

On the 16th of March, 1863, the Supreme Court gave judgment in the case as follows:

'On appeal from the District Court of the first judicial district in and for Story County.

'Now, on this day, that cause being called, and having been argued and submitted and taken under advisement by the court, and all and singular the law and the premises being by the court here seen and fully considered, the opinion of the court herein is delivered by Turner, C. J. (Mott, J., concurring), to the effect that the judgment below be affirmed.