Opinion · Supreme Court of the United States
England v. Gebhardt
Eng. v. Gebhardt, 112 U.S. 502 (1884)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1884-12-08
- Topic
- general
Mr. Chief Justice Waite delivered the. opinion of the court. He recited the facts as above stated, and continued : It was decided in Babbitt v. Clark, 103 U. S. 606, 611, that “ Congress evidently intended that orders of this kind made in suits at law should be brought here by writ of error, and that *505 where the suit was in equity an appeal should be taken.” This was a suit1 at law, and it was, therefore properly brought here by writ of error.
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- Cited by
- 44 opinions
Headnotes
- Civil Procedure — Record on Writ of Error On a writ of error, a court of errors reviews only errors apparent on the face of the record; no question of fact decided on evidence below can be re-examined unless the evidence is brought into the record by a bill of exceptions, an agreed statement of facts, a special finding in the nature of a special verdict, or some other method recognized by the practice of courts of error for that purpose. 112 U.S. 502 (citing Storm v. United States, 94 U.S. 76, 81; Suydam v. Williamson, 20 How. 427; Baltimore & Potomac Railroad Co. v. Trustees Sixth Presbyterian Church, 91 U.S. 127, 130; Kearney v. Denn, 15 Wall. 51, 56)
- Civil Procedure — Record on Writ of Error Papers merely found among the files of the court below do not thereby become part of the record on writ of error; a paper that is not part of the pleadings or process in the cause must be put into the record by some action of the court, such as a bill of exceptions or its equivalent, before it can be considered on review. 112 U.S. 502 (citing Sargeant v. State Bank of Indiana, 12 How. 371, 384; Fisher v. Cockerell, 5 Pet. 248, 254)
- Civil Procedure — Record on Writ of Error The opinion of the court below, though required by Rule 8, § 2, to be annexed to and transmitted with the record on writ of error or appeal, is not thereby made a part of the record below and cannot supply the place of a bill of exceptions or other authentic statement of the facts on which the ruling was made. 112 U.S. 502
- Civil Procedure — Removal An order of a circuit court remanding a suit to the state court is reviewable in the Supreme Court on writ of error where the suit is at law, and on appeal where it is in equity; but the review extends only to errors apparent on the face of the record, and the same requirements for preserving questions of fact in the record apply as in other cases brought up by writ of error. 112 U.S. 502 (citing Babbitt v. Clark, 103 U.S. 606, 611)
ENGLAND v. GEBHARDT,112 U.S. 502(1884)
5 S.Ct. 287
ENGLANDv. GEBHARDT.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW
JERSEY.
Submitted November 20, 1884.
Decided December 8, 1884.
On the 14th of March, 1884, the following order was made in the cause:Page 503
"This cause coming on to be heard on a motion to remand this cause to the New Jersey Supreme Court, in the presence of Joseph A. Beecher, attorney for the plaintiff, and of A.Q. Keasbey, attorney for the defendant, and the matter having been argued by the respective attorneys, and the court having taken time to consider the same, and the court being of opinion that there is not in said cause so attempted to be removed to this court a controversy between citizens of different States, according to the true intent and meaning of the act of Congress in this behalf, it is now, . . . on motion of Joseph A. Beecher, ordered that the said motion be, and the same is hereby, granted, and this cause is remanded to the New Jersey Supreme Court to proceed therewith according to law, and it is further ordered that the said plaintiff do recover of the said defendant, Isaac W. England, the costs of this motion to be taxed."
The motion on which this order was made was not set out in the record. There were, however, in the transcript what purported to be certain affidavits sworn to in the months of November and December, 1883, and filed February 25, 1884, which had indorsed thereon, "Affidavits, on motion to remand," and there was also what purported to be the opinion of the judge denying the motion, from which it appeared that "the motion to remand this cause was founded upon the allegation that both the plaintiff and defendant were citizens of the State of New Jersey when the summons was issued and served and the petition for removal was filed. It was resisted by the defendant upon the ground that at both of these periods of time the plaintiff was residing in, and was a citizen of New York." There was no bill of exceptions in the record, and no authentic finding or statement of the facts on which the order to remand was made, or of the evidence submitted by the parties. Neither did the order to remand itself refer in any manner to the affidavits as the foundation of the action which was taken.
The record in the case contains nothing of the kind. The affidavits, copies of which appear in the transcript, form no part of the record proper. The mere fact that a paper is found among the files in a cause does not of itself make it a part of the record. If not a part of the pleadings or process in the cause, it must be put into the record by some action of the court.Sargeantv.State Bank of Indiana, 12 How. 371, 384;Fisherv.Cockerell, 5 Pet. 248, 254. This may be done by a bill of exceptions, or something which is equivalent. Here, however, that has not been done. It nowhere appears that the affidavits were ever brought to the attention of the court, much less that they constituted the evidence on which the ruling was made. The case is, therefore, in this respect, different fromBronsonv.Schulten,104 U.S. 410,412, where the order setting aside the judgment referred to and identifiedPage 506in terms the affidavits found in the transcript as the foundation of the order which was made.
Neither is the opinion of the court a part of the record. Our Rule 8, sec. 2, requires a copy of any opinion that is filed in a cause to be annexed to and transmitted with the record, on a writ of error or an appeal to this court, but that of itself does not make it a part of the record below.The order to remand is affirmed.