Burr v. Des Moines Railroad and Navigation Company

by Samuel Freeman Miller

United States Supreme Court

68 U.S. 99

Burr  v.  Des Moines Railroad and Navigation Company

THIS was a writ of error, in an action of ejectment, to the Circuit Court for the District of Iowa; the plaintiff in error having been also plaintiff below.

The record (or document so called), which was brought before the Supreme Court, after reciting the pleadings, and that the parties had appeared and waived a jury, showed that the following judgment had been rendered by the court

'The evidence having been seen and examined by the court, and the arguments of counsel heard, it is now considered and adjudged that the court do find the issue in favor of the defendant, and that the plaintiff take nothing by his petition. Whereupon it is ordered that the defendant recover of the plaintiff his costs in this behalf expended, taxed, &c., and that he have execution therefor.'

Then came a certificate of the clerk to the record, certifying that what preceded the certificate contained 'a true, full, and perfect copy of the plaintiff's petition and replication, of the defendant's answer, and of all the proceedings of the court in the above-named cause.'

After this followed thirty-six pages of printed matter, annexed to which was another certificate of the clerk, certifying, 'that the foregoing twenty pages of print and writing are a true copy of the agreed statement of facts filed in the foregoing cause, as the same remains on file, it being all the evidence upon which the cause was submitted.'

This 'agreed statement of facts' consisted of acts of Congress and statutes of Iowa; of opinions of Attorneys-General of the United States; of decisions of the Secretaries of the Treasury and Interior Departments, and numerous letters between those officers and members of Congress, and other persons interested in the several land grants made by Congress to the State of Iowa for purposes of internal improvement; of various matters admitted by the one party and the other; the whole constituting a perplexing mass of law and evidence. At the close of 'the record' was the following statement:

'If, upon the whole case, the title of the plaintiff to said lands has not failed, but, under the defendants' deed to him, and the subsequent legislation by Congress, he has acquired a good title to said lands, the defendants are entitled to judgment and to costs of suit.

'This cause is submitted, without a jury, upon the foregoing agreed statement of facts; but it is expressly agreed that the matters and things herein stated are only to be taken for what they are legally worth; and that all objections on account of immateriality or irrelevancy are reserved by the parties respectively; and may be urged and considered by the parties, and by the court, upon the argument and in the decision.'

Notwithstanding the reservation of the right to do so, it appeared that no objection had been taken on the trial to the materiality or relevancy of any of the mass of testimony above described, nor to any ruling of the court on the law arising on the facts. The paper just quoted was not signed by counsel, nor entered on the record of the court, nor made a part of the record of the case by bill of exceptions, or in any other manner. In fact, no bill of exceptions was taken in the suit.

The case was argued here, on the large mass of testimony brought up, on its merits and as if the record had been in form, by Mr. Gilbert for the plaintiff in error, and by Messrs. Mason and Tracy on the other side.

Mr. Justice MILLER, after stating the case, delivered the opinion of the court:

Notes