Kearney v. Case
ERROR to the Circuit Court for the District of Louisiana; the case being this:
The act of Congress of March 3d, 1865, after presenting in its first two sections the manner in which grand and petit jurors are to be selected and impanelled in criminal cases, proceeds in its fourth thus to enact:
'Issues of fact in civil cases in any Circuit Court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or attorneys of record file a stipulation in writing with the clerk of the court waiving a jury.'
It then goes on in the same section:
'The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause, in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts to support the judgment.'
This statute being in force, Case, on the 13th September, 1868, as receiver of the First National Bank of New Orleans, brought suit against Kearney on two promissory notes owned by the bank.
Without any agreement in writing filed to have the case tried under the above-quoted act of Congress, or any agreement in writing at all, so far as the transcript of the record showed, a trial was afterwards had by the court, which rendered judgments against the defendant on the 12th of January, 1869.
Though, as above-mentioned, no agreement to submit in writing appeared or was inferable, the record of the judgment showed that counsel were present on both sides when the trial was had. It ran thus:
'December 7th, 1868. This cause came up for trial-J. D. Rouse and Elmore and King, for plaintiff; J. G. L. Bright and Bradford, Lea, and Finney, for defendants-when, after hearing the pleadings, evidence, and argument, the court considering the same, it is ordered, adjudged, and decreed that Charles Case do recover, &c., &c.'
A writ of error was applied for and obtained by the defendant, on the 28th of January, 1869, and filed on the same day; a citation being issued and served on that day.
On the 6th of November, 1869, a paper bearing date the 19th of October, 1869, and signed by the plaintiff, and by the counsel for the defendant, was filed in the court below, which contained an agreement by them that the statement of facts set forth therein should be 'the statement of facts for the writ of error returnable to the Supreme Court of the United States.' There was no bill of exceptions.
On the transcript of such a record the case came here. The question now was what the court should do on such a record.
Mr. T. J. Durant, for the plaintiff in error-considering that the recorded presence of the counsel showed an agreement to waive a jury, and was tantamount or superior to a copy of an agreement in writing, filed with the clerk, such as the act of Congress of March 3d, 1865, contemplated but did not exact as absolute condition for a trial by the court, and that a case for review was sufficiently made by the paper agreed on and signed by the two parties, and filed of record-argued the case upon its merits; arguing afterwards that if the court should be of opinion that on such a record the merits could not be gone into, then, still, and certainly, the judgment ought not to be affirmed; but ought rather to be reversed; for if the absence of an agreement to waive a jury was sufficient to prevent a review, it was equally sufficient to show that the court had acted unconstitutionally in trying without consent of parties or their counsel the issue itself.
But if not reversed it ought to be remanded for a new trial. The statement was indeed agreed on by counsel, and was not a 'finding' by the court. But it fell within Insurance Company v. Tweed.  There counsel for both parties in this court had agreed to certain parts of the opinion of the court below, as containing the material facts of the case, and to treat them as facts found by that court though not so found. That agreement of counsel was held as good as a finding under the act of March 3d, 1865. So the statement here was filed after the judgment. But in this point it was saved by Flanders v. Tweed;  for there the statement of the judge had not been filed till three months after the judgment. But the case being (as is this one) from Louisiana, where the civil law practice prevails, and the parties having meant to put the case in form for review, and having believed that it was so put in form, the court did not affirm the judgment, but sent the case back for a new trial.
Mr. B. H. Bristow, Solicitor-General, contra:
The statement of facts was not filed until many months after the issue and filing of the writ, and cannot be regarded as part of the record, or as anything on which error can be assigned.  Flanders v. Tweed was a special case, and almost in terms declared not to be a precedent. And the statement there was the judge's.
Besides, in Norris v. Jackson,  this court laid down the following rules as the result of an examination by it of the fourth section of the act of 1865, in reference to cases where issues of fact are submitted to the court:
'1. If the verdict of the court be a general verdict, only such rulings of the court, in the progress of the trial, can be reviewed as are presented by bill of exceptions, or as may arise on the pleadings.
'2. In such cases, a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury.
'3. That if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict, which raises the legal propositions, or they must present to the court their propositions of law, and require the court to rule on them.
'4. That objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.'
Here the court found no special verdict, nor does the statement which was filed after judgment even purport to have been submitted to the court, or to set forth the facts upon which its judgment was founded. In the latter respect, more especially, is the case under consideration clearly distinguishable from Insurance Company v. Tweed, where certain parts of the opinion of the court below, which appeared in the record, having been agreed to by the parties as containing the material facts of the case, were treated here as facts found by the court.
As there is no question of law open to re-examination here, there being no bill of exceptions nor anything upon which error can be assigned, the judgment must be presumed to be right, and on that ground should be affirmed. 
In this view, it is thought unimportant to argue merits.
Mr. Justice MILLER delivered the opinion of the court.
^1 7 Wallace, 44.
^2 9 Id. 426.
^3 Avendaro v. Gay, 8 Wallace, 376.
^4 9 Wallace, 125.
^5 James v. Bank, 7 Wallace, 692.