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shall be commanded that he appear at a certain Day, either to acknowledge or deny his Seal; and if the Justice cannot deny his Seal, they shall proceed on such Exception, to determine whether it ought to be allowed or disallowed.



94 United States 76.

ERROR to the Circuit Court of the United States for the District of California.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Errors of the Circuit Court resting in parol cannot be re-examined in this court by writ of error. Instead of that, the writ of error addresses itself to the record; and the rule is, that, whenever the error is apparent in the record, whether it be made to appear by bill of exceptions, an agreed statement of facts, or by demurrer, the error is open to re-examination and correction.

Whatever error of the court is apparent in the record, whether it be in the foundation, proceedings, judgment, or execution of the suit, may be re-examined and corrected; but neither the rulings of the court in admitting or excluding evidence, nor the instructions given by the court to the jury, are a part of the record, unless made so by a proper bill of exceptions. Suydam v. Williamson, 20 How. 433.1

The action is an action of debt founded on the bond given by the defendants to secure the faithful performance of covenants contained in their previously described written agreement. Reference has already been made to all the exceptions taken by the defendants to the rulings of the court during the trial before the jury; but it is also objected in argument here that the bond described in the complaint was not produced at the trial, and that no copy of it was ever filed in the case. Such an objection, if it had been made in the court below, might have been available for the defendants, unless the plaintiffs had overcome it by producing the instrument, or by showing its loss and due search for it without success, and had offered secondary proof of its contents. Parol proof of the contents of a lost instrument of the kind is admissible, provided it appear that proper search has been made for it without success.

Had the defendants intended to insist that the bond should be given in evidence, they should have made that intention known at the trial; and, if not given in evidence, they might have requested the

1 A detailed discussion of the facts relating to exceptions properly presented by the defendant is omitted.

court to direct a verdict in their favor, and, in case their request had been refused, they would have had the right to except to the ruling of the court in refusing their request for instruction. Nothing of the kind was done; and, for aught that appears in the record, it may be that the bond was given in evidence, or, if not, that the defendants waived the right to require its production.

Errors apparent in the record, though not presented by a bill of exceptions, may be re-examined by writ of error in an appellate tribunal; but alleged errors, not presented by a bill of exceptions, nor apparent on the face of the record, are not the proper subjects of re-examination by writ of error in this court.

Parties dissatisfied with the ruling of a subordinate court, and intending to seek a revision of the same in the Appellate Court, must take care to raise the questions to be re-examined, and must see to it that the questions are made to appear in the record; for nothing is error in law except what is apparent on the face of the record by bill of exceptions, or an agreed statement of facts, or in some one of the methods known to the practice of courts of error for the accomplishment of that object. Suydam v. Williamson, 20 How. 433; Garland v. Davis, 4 id. 131; Steph. on Plead. 121; Slacum v. Pomeroy, 6 Cranch, 221; Strother v. Hutchinson, 4 Bing. N. C. 83.1.

Judgment affirmed.2

In HAMLIN V. REYNOLDS, 22 Ill. 207 (1859), WALKER, J., said (p. 209): "It is believed that no reported case can be found, either in Great Britain or this country, in which it has been held that it is necessary to except to the judgment on a demurrer, to enable the party to have the decision reviewed in an appellate court. By the ancient practice it was the final judgment in the case, on the count or plea to which the demurrer was interposed, and leave to amend or plead over was rarely if ever given. And the judgment on demurrer, by the modern practice, is final, unless the court in the exercise of its discretion permits an amendment, or grants leave to plead over. The judgment on the demurrer is as much a part of the record as any other judgment that is rendered by the court in the cause. The office of a bill of exceptions is to preserve that of record, which otherwise would not appear of record. By the practice of courts of common law jurisdiction, the evidence in a cause, the decisions of the court in admitting or rejecting evidence, affidavits on motions, and the reasons upon

1 The remainder of the opinion, dealing with other exceptions properly presented, is omitted.

2 See Cooley . Merrill, 6 Greenl. 50, 53-54 (Me. 1829); Powell . Sedgwick, 5 Whart. 336 (Pa. 1840). See also Crews v. Baird, 2 Idaho 103 (1885). As to modern appellate procedure in actions at law, see Ch. XIX, § 6, infra. As to the form of a bill of exceptions, see Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592, 600-603 (U. S. 1863); Ex parte Jones, 8 Cow. 123 (N. Y. 1828). As to the time when a bill of exceptions must be tendered, see Wright v. Sharp, 1 Salk. 288 (K. B. 1709).

which motions are made, the giving and refusing instructions, and various other matters, do not appear of record, and are no part of it, unless embodied in a bill of exceptions, and by that means made a part of the record in the case. In the decision of all such questions, the judgment of the court is not usually spread upon the roll of its proceedings. While judgments by default, on demurrer, in cases of non-suit, final judgment on verdict, etc., have by the practice at all periods, been so entered and regarded as a part of the record. It would be improper practice, to embody a judgment on a demurrer in a bill of exceptions, as it would uselessly incumber the record and unnecessarily add to the expense of litigation. The position that the judgment on the demurrer to the second and third pleas in this case, was not excepted to in the court below is wholly untenable."

In WILLISTON V. FISHER, 28 Ill. 43 (1862), CATON, C. J., said (pp. 43-44): "An assignment of errors in this court performs the same office as a declaration in a court of original jurisdiction. It would be just as regular and proper for the Circuit Court to render a judgment in a cause where there is no declaration, as for this court to affirm or reverse a judgment where there is no assignment of errors. We should reverse such a judgment rendered by the Circuit Court, and we should commit the same error to render a judgment here without the necessary pleading.

We have by accident discovered what purports to be an assignment of errors, on one of the seven printed abstracts filed in this cause. But this is no more a compliance with the rule than it would have been had the assignment of errors been written on an abstract in any other cause. The seventh rule of this court declares: 'Errors, when assigned, and the joinder thereon, shall be written on or attached to the record. Until this is done, the assignment is not a pleading in the

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1 Accord, that no exception is necessary with respect to errors apparent on the pleadings, see Nalle v. Oyster, 230 U. S. 165, 176-179 (1913); Platteter v. Paulson-Ellingson Lbr. Co., 149 Wis. 186, 188 (1912). Contra: Lott v. Kansas City, F. S. & G. R. R. Co., 42 Kan. 293 (1889).

2 See Trenton Banking Co. v. Rittenhouse, 96 N. J. L. 450, 455 (1921). As to pleading in error, see 2 Tidd, Practice (9th ed. 1828) 1168-1170, 11731175; Moody v. Vreeland, 7 Wend. 55 (N. Y. 1831). As to service upon the defendant in error, see Nations v. Johnson, 24 How. 195 (U. S. 1860).

3 But the appellate court may at its option notice a plain error not assigned. See Castledine v. Mundy, 4 B. & Ad. 90 (K. B. 1832); United States v. Pena, 175 U. S. 500, 502 (1899). See also Crandall v. State, 10 Conn. 339, 370-371 (1834).




180 Federal 356.

[ACTION by Laura W. Monteith against the Press Publishing Company for libel. At the trial certain testimony offered by the defendant was excluded, and exception taken. The defendant also excepted to portions of the trial judge's charge to the jury. There was a verdict for the plaintiff for $15,000, and judgment thereon.] 1

COXE, Circuit Judge.2


The defendant realizing, apparently, that even upon its own presentation no very serious error has been committed invokes the archaic rule that if error be discovered, no matter how trivial, prejudice must be presumed. The more rational and enlightened view is that in order to justify a reversal the court must be able to conclude that the error is so substantial as to affect injuriously the appellant's rights.

Prejudice must be perceived, not presumed or imagined.

The writer, speaking only for himself, is in hearty accord with the modern tendency.

The object of all litigation should be to arrive at a just result by the most direct, speedy and inexpensive proceedings. If such a result can be reached by absolutely inerrant methods so much the better, but while the administration of justice is in the hands of merely finite beings, such perfection can hardly be expected. I venture to think that no long continued, hotly contested trial can be conducted to a conclusion without mistakes being committed. Few minds are so constituted that they can grasp at the outset all the ramifications of a complicated controversy and, before the judge can get the perspective of the trial, some mistakes may occur, but these should be disregarded if it can be seen that the case was correctly decided and that, even if they had not been made, the same result would have been reached. Justice can be attained without infallibility.

One of the English rules provides:

"A new trial shall not be granted on the ground of the misdirection of the jury or of the improper admission or rejection of evidence, unless in the opinion of the court to which the application is made, some

1 The statement of facts is greatly condensed from the opinion.

2 A part of the opinion, in which the court held that the trial judge had committed no error in his rulings, is omitted.

substantial wrong or miscarriage of justice has been thereby occasioned on the trial." 1

Were such a rule in force here, even assuming that defendant's contentions are correct, the court would be unable to say that substantial wrong has been done the defendant. In several instances the alleged error [in excluding evidence] was subsequently corrected and the excluded evidence supplied.

The granting of a new trial is often a denial of justice, witnesses die or remove beyond the jurisdiction of the court and the resources of the litigants become exhausted.

Believing as we do that the libel here was without justification or excuse and that the verdict was not excessive, we should hesitate long before requiring the plaintiff to begin anew the weary pilgrimage through the courts.

The judgment is affirmed with costs."

In KOUNTZE v. OMAHA HOTEL Co., 107 U. S. 378 (1882), BRADLEY, J., said (pp. 381-384): "By the common law a writ of error, without any security, was of itself a supersedeas of execution from the time of its allowance or recognition by the court to which it was directed; and even before, if the defendant in error had notice of it; or, in the Common Pleas, from the time of its delivery to the clerk of the errors of that court, whose business it was, amongst other things, to prepare the returns. 1 Tidd's Pract. 530, 1145; Impey's Pract. C. P. 16; Petersd. Abr., tit. Error. I. (H. a.). The presentation of the writ issuing from the Superior Court stopped all further proceedings except such as were incidental to a compliance with its command to certify the record. But as writs of error came to be sued out for the purpose of delay, various acts of Parliament were passed, requiring security in certain cases, in order that the writ might operate as a supersedeas. First, without referring to a statute in the time of Elizabeth, the statute of 3 James I., c. 8, declared that no execution should be stayed or delayed, upon or by any writ of error, or super

1 See p. 415 n, supra.

2 See Haney v. Takakura, 2 Cal. App. (2d) 1, 9-10 (1934). Compare Inhabitants of Wayland v. Inhabitants of Ware, 109 Mass. 248, 250 (1872) (erroneous admission of evidence); McBride v. Huckins, 76 N. H. 206, 211 (1911) (erroneous instruction). Cf. pp. 411-417, supra. Where the trial is by the court, it will not ordinarily be presumed that there was prejudice from the erroneous admission of evidence. See Merchants' Despatch Transp. Co.

v. Joesting, 89 Ill. 152, 155 (1878). Cf. Ch. XIII, §7, infra.

It is not ground for reversal on writ of error that the judgment is one more favorable to the plaintiff in error than he is entitled to. See Gamon v. Jones, 4 T. R. 509, 510 (K. B. 1792); Sypherd v. Myers, 80 N. J. L. 321 (1911) (judgment for plaintiff in error for nominal damages when verdict should have been directed against him).

It is not ground for reversal that the trial court gave erroneous reasons for its decision. See Gillespie v. John W. Ferguson Co., 78 N. J. L. 470 (1909).

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