SMITH v. WEEKS, 53 F. 758

PUTNAM, Circuit Judge. For all the purposes of this case it can be safely said that proceedings on error in the federal courts are governed by the common law, except as it is modified by Rev. St. §§ 649, 700.

There are certain plain and well-settled methods of raising questions to he determined on error, around which the rules and practice of the federal courts have gathered, and to which they are adapted; so that the legal propositions involved may be raised sea.sonably and with precision at the trial, so also that at that time may be corrected all mere slips or other inadvertencies, and so that the questions may he plainly and easily apprehended by the appellate court; and so, further, that parties shall not be permitted to secretly reserve questions by subterfuge, or present them first on appeal as after-thoughts.

For this reason the federal courts justly regard with jealousy and great care all attempts to raise questions on error otherwise than by the plain methods well known to the law. “No questions of law can be reviewed on error except those arising upon the process, pleadings, or judgment,” “unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated.” Campbell v. Boyreau, 21 How. 223; Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. Rep. 296. In Campbell v.

Boyrean, the court not only laid down this general rule, but specifically held that .“the finding of issues of fact by the court upon the evidence is altogether unknown to a common-law court, and cannot be recognized as a judicial act.” It continued: “And this court, therefore, cannot regard the facts so found as judicially determined in the court below, nor examine the questions of law, as if those facts had been conclusively determined by a jury, or settled by the admission of the parties.” It further held that no exceptions are to be taken pending a trial, “unless a jury was actually impaneled, and the exception reserved while they were still at the bar.” This was in 1858, prior to the enactment of the statute now represented by Rev.

St. §§ 649, 700. It needs nothing further to demonstrate that, independently of these statute provisions, this court cannot review the rulings of the circuit court to which exceptions were taken. The intent and requirements of Rev. St. § 649, are simple, but they are positive. Ho specific form is demanded if the intent of the agreement filed under it is plain. Supervisors v. Kennicott, 103 U. S. 554, 556. If the parties here had agreed in writing, before sending thé case to the auditor, that his findings of fact should be conclusive, they would, perhaps, have brought themselves within Bond v. Dustin, 112 U.

S. 604, 5 Sup. Ct. Rep. 296; Paine v. Railroad Co., 118 U. S. 152, 6 Sup; Ct. Rep. 1019; and Roberts v. Benjamin, 124 U. S. 64, 8 Sup. Ct. Rep. 393. In each of these cases there was an agreement in writing for a reference under the local practice, and the supreme court held this sufficient under the statute. But the difficulty here is that, instead of agreeing that the case should be tried “without the intervention of a jury,” as the statute authorizes, the parties expressly reserved a jury trial in certain contingencies; so that, if this court should sustain the exceptions, a jury trial must follow.

This was not only a failure to comply with the simple letter of the statute, but was am attempt to send the case to the appellate court contingently, in such way as to experiment with it, and bar it from disposing of the suit finally. This practice the federal courts disapprove; and, to conclude, as this record comes into this court, the case is well within the rule settled by us in Merrill v. Floyd, 53 Fed. Rep. 172. The validity of the exceptions, and their effect, depend on the 'status at the time when taken; therefore the agreement in this court cannot directly assist the plaintiff in error.

He, however, makes it the basis of a motion to remand. It is plain that this court cannot in this case, if in any, remand unless it reverses; and Avhere there is no error of which this court can take jurisdiction, and there is none in this case, it cannot reverse. The court, however, has considered the applicability of Flanders v. Tweed, 9 Wall. 425.

Whether that case is analogous to this is far from clear; and whether the supreme court would now make the same allowance for the misunderstandings of counsel with reference to the statute under discussion which they did in that case, arising very soon after the statute was passed, we have no method of satisfying ourselves. But there it was stated that “it was apparent” that “the parties,” meaning both parties, supposed, they had made up a case — perhaps misled by the act o.f 1824 — which would be entitled to a re-examination in the appellate court. We cannot determine that such was the fact in the case at bar.

There is nothing in the agreement hied in the court below to show it. The agreement died in this court admits it; but, again, the brief of the defendant in error denies it.- On the whole, we think we ought not to attempt to apply the apparent rule of Flanders v. Tweed, — a case so exceptional that, so far as we have observed, it has never been repealed. In Reed v. Gardner, 17 Wall. 409, it was expressly declared exceptional. We are, however, disposed to follow the order entered by this court, October 19, 1892, in Watson v. Stevens, 51 Fed. Rep. 757, 2 C. C.

A. 500, and to reserve to the plaintiff in error whatever relief he may hereafter discover, if any; and therefore, without entertaining or expressing any opinion concerning the value of what we reserve, or whether any proceedings looking to a review would have any legal merits, we make the order special, as follows: The decree of the circuit court is affirmed, and this court resta-ves to the plaintiff in error liberty to file in the circuit court an application for leave to proceed in review, and to proceed on such application as the circuit court may determine.