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Such is also the English practice under the Statute of Westminster 2, and such is the practice recognized by this court.

Therefore, where a bill of exceptions was signed two years after the trial, the Supreme Court of

Iowa were right in striking it out of the record.

Judgment.

It is considered by the court, that said defendants take nothing by their said motion; and thereupon the plaintiff moves the court for judgment upon the verdict rendered by the jurors aforesaid at the last term of this court in this cause. It is therefore considered by the court, that the plaintiff recover of the defendants the said sum of eighteen hundred and thirty-seven dollars and fifty cents, his damages aforesaid in form aforesaid assessed, besides his costs by him about his suit in this behalf expended, and that execution issue therefor.

Appeal granted.

And thereupon, the said defendants, by their attorney, pray an appeal, which was allowed. District Court of Scott County from correctWhether or not this appeal prevented the ing the erroneous entry was one of the questions before this court.

At October Term, 1842, the following pro

Where, after a verdict, a motion was made for a new trial, which was held under a continuance, and an entry was afterwards made that the motion was overruled, and judgment entered on the verdict, but, at the time of such entry and judg-|ceedings, took place in the District Court of ment, the court was not legally in session, it was Scott County: no error in the court, at a subsequent and regular term, to treat the entry thus irregularly made as a nullity, to decide the motion, and enter up judgment according to the verdict.

pointed out.

The difference between this case and that of The Bank of the United States v. Moss, 6 Howard, 31, A continuance, relating back, may be entered at any time, to effect the purposes of justice.

THIS HIS cause was brought up by writ of error from the Supreme Court of the Territory of Iowa.

It was an action commenced in the District Court of Scott County, in the Territory of Iowa, by Wilson against Sheppard and others, for a breach of a contract for hiring a steamboat. It is not necessary to state the facts in the case, or any other circumstances than those upon which the decision of this court turned. On the 7th of October, 1841, the cause came on for trial in the District Court of Scott County, when the jury found a verdict for the plaintiff, and assessed his damages at $1,837.50.

A bill of exceptions, containing a recapitula261*] tion of the evidence *upon both sides and sundry prayers to the court, is found in its proper place in the record; but the date of its signature by the judge is the 21st day of December, 1843, whereas the trial took place in October, 1841.

A motion for a new trial was made by the counsel for the defendants upon several grounds, which it is not necessary to specify In April, 1842, the court commenced in Scott County on the 4th, and in Clinton County, in the same district, on the 11th. But on the 12th of April, whilst the court was in session in Clinton County, the following entries were made in Scott County:

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Plaintiff's Motion for Judgment.

And afterwards, to wit, on the third day of October, in the year of our Lord 1842, the said plaintiff filed in the court aforesaid the following motion for judgment in this cause, to

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This day came the said plaintiff, by his attorney, and it appearing to the court, that, at a previous term of this court, to wit, the October Term, 1841, the issue previously joined in this cause was submitted to a jury, who, after hearing the evidence and arguments of counsel, returned into court the following verdict, to wit: they find the issue for the plaintiff, and assess his damages at the sum of eighteen hundred and thirty-seven dollars and fifty cents.

Appeal prayed by Defendants. Whereupon, a motion was made by the attorney for defendants for a new trial herein, which motion was, at said October term, taken under advisement by the court; and it further appearing to the court, that this court has not at any time since decided said motion, but that said motion was continued under advisement until the present term, that the order of continuance at last term was not entered of record. It is therefore ruled, that said order of continuance be entered nunc pro tunc; and the court, having now fully considered the said motion for a new trial, doth overrule the same.

And it is further considered by the court, that the plaintiff have and recover of and from the said defendants the said sum of eighteen hundred and thirty-seven dollars and fifty cents, his damages in manner and form aforesaid assessed, together with his costs by him about his suit in that behalf expended, and that a special execution against the property attached issue therefor; thereupon the defendants prayed an appeal to the Supreme Court.

To this judgment of the District Court, the counsel for the defendants took a bill of exceptions, with a view to carry the case up to the Supreme Court of Iowa.

In January, 1844, the case came before the Supreme Court of Iowa, when the counsel for Wilson moved to strike from the record, and reject from the consideration of the court, the bill of exceptions filed and dated in December, 1843; which motion the court sustained.

The counsel for Sheppard then moved for a mandamus, directed to the judge of the District 263*] Court of Scott County, requiring *him to sign and seal, nunc pro tunc, the bill of exceptions tendered on the original trial. But the court refused to grant the mandamus.

After some other proceedings, which it is not necessary to state, the Supreme Court of Iowa, in January, 1845, affirmed the judgment of the District Court of Scott County.

To review this affirmance, a writ of error brought the case up to this court.

It was argued by Mr. Clement Cox and Mr. Learned (in print) for the plaintiff's in error, and by Mr. Grant for the defendant.

The counsel for the plaintiffs in error assigned twelve causes of error, the last six of which are as follows:

7th. The court erred in entering an order for a continuance of this cause, nunc pro tunc, on motion therefor, at the October Term, 1842, and in rendering a judgment upon the verdict of the jury at said term, upon a mere motion of the plaintiff.

8th. The court erred in rendering a judgment at the October Term, 1842, the second judgment in this record, after a writ of error had been sued out and served, and made a supersedeas by the allowance of a judge of the Supreme Court, which was then pending. . 9th. The Supreme Court erred in expunging from the record the defendant's bill of exceptions, tendered at the trial of the cause before the District Court of Scott County.

10th. The Supreme Court erred in refusing the writ of mandamus, on the motion of the plaintiff in error, to the judge of the District Court of Scott County, requiring the said judge to sign and seal, nunc pro tunc, the bills of exceptions tendered at the trial of this cause before the District Court, by the defendants below, or show cause against the said motion.

11th. The said Supreme Court erred in reversing the judgment of the District Court, rendered upon the verdict of the jury on the 12th of April, 1842, on the ground that the supersedeas bond did not appear in the record with the writ of error.

12th. The Supreme Court erred in affirming the judgment of the District Court, rendered on the 7th of October, 1842, being the second judgment rendered in said cause, and which

| said judgment was rendered when a writ of error was pending, and after the cause had been removed thereby from the jurisdiction of said District Court.

The argument on behalf of the plaintiffs in error, upon the above point. was as follows: We will now examine the 7th and 8th errors assigned, as *they are connected in sub- [*264 stance, and inquire what this first judgment of April was in its character.

Suppose the plaintiffs in error had acquiesced in this judgment, and had not taken any steps to have it reversed, could not the plaintiff below have enforced his judgment? Was it not a final judgment in the cause, conclusive on its face, upon the parties to it, upon the subject matter embraced in the suit? Suppose the plaintiff below had issued his execution, levied it upon property, and sold the same in satisfaction of the judgment, while the judgment remained unreversed, and without any supersedeas to restrain its operations, could an action have been maintained against the officer for levying upon, taking, and selling the defendants' property in satisfaction of the judgment debt? We say it could not; and the defendant in error thought so, too, for he did issue his execution upon this judgment, which appears by the records, and the officer made his full return thereof before the writ of error to reverse the judgment was sued out. In 6 Peters, 8, the Supreme Court decide, "If execution issue upon an erroneous judgment, the party who acts under it is justified until it is reversed, for it is the act of the court." So in 9 Peters, 8, the court say: "A judgment of a court of competent jurisdiction" (which means, I suppose, a court having a legal jurisdiction of the subject matter of the suit), "while unreversed, concludes the subject matter of it between the parties to it." In 3 Cranch, 300, the court decide, that "a judgment of a court of competent jurisdiction, although obtained by fraud, has never been considered void, and all acts done under such judgments are valid as respects third persons." Such judgments, then, by these authorities, would protect the sheriff acting under the authority of an execution to enforce them. Such is the case of the first judgment rendered in this cause, as the record will show. Again, in 3 Dallas, 401, the court say, that "although a judgment of an inferior court be defective, yet, if in its nature it is final, and one on which an execution can issue, the party is entitled to his writ of error. This judgment of the 12th of April. 1842, was not only final by its terms, but it was one on which an execution could issue-one on which the plaintiff below did actually issue, and have a legal return of his execution, and one on which we were entitled to a writ of error. We obtained our writ of error, and made it a supersedeas, as the record proves.

The court erred, then, in rendering a judgment at the October Term, 1842, in this cause, after a writ of error had been sued out and was pending, and which was made a supersedeas to the former judgment by allowance of a judge of the Supreme *Court. We contend [*265 that the writ of error was a supersedeas, and stayed all proceedings of the District Court upon this judgment after its date; that the District Court was, from that hour, held in

abeyance in relation to the whole cause and every matter connected with it, until the writ of error was disposed of in the appellate court. For this point I refer to 1 Blackford, 483, where the court say: "A writ of error is a supersedeas, so far as to stay all proceedings until the writ of error is disposed of." If this be law—and the books are full of similar decisions-then we say that the District Court of Scott County had no power, at the October Term, 1842, nor at any subsequent term, to render the second judgment in this cause, which was brought there to be reversed by the second writ of error appended to the record, even if the cause was otherwise open for the action of the court, and a judgment might have been legally rendered at that term. But I contend that the District Court had no power or legal authority to alter or amend a final judgment, at a subsequent term after it is | rendered. It can only amend as to mere form. We refer the court to 1 Ohio Reports, 375, where this doctrine is fully laid down; also to 2 Ohio Reports, 32, and 3 Ohio Reports, 306. In both of these last cases, the same principles are decided. In 2 Washington's C. C. R. 433, the court decide, that “where there is error in entering a judgment, the court, at a subsequent term, cannot set it aside, unless it was entered by misprision of the clerk, by fraud." This is a strong case, from high authority, and is as directly in point, it seems to me, as language can make a case. In 3 Marshall's Ky. Rep. 268, the court say: "A court possesses no power, at a subsequent term, to modify, set aside, or alter, on motion, a judgment of a previous term. This proceeding must be by writ of error." In the case at bar, the court not only set aside a final judgment rendered at a preceding term, but in defiance of a writ of error issued to reverse that judgment; and this was done on the motion of the party who voluntarily asked to have the erroneous judgment, as he termed it, rendered.

In 1 Greenleaf, 369, the court decide, that "the judgment of a court of competent jurisdiction cannot be affected by entries on the record, except upon a writ of error." How much less, then, should an entire judgment be annulled, however erroneous it may be, and a new judgment entered at a subsequent term, upon a mere motion, and without any rule for the opposite party to show cause against it, as was the case at bar. It is decided in 1 Blackford, 168, that "a grant erroneously made, until it is reversed, is a bar to a suit." The reasoning, from all these authorities, seems to 266*] me to be this: *that an act done by legal authority, appearing on its face to have been correctly done, however erroneous, can only be corrected in a legal manner, and by the proper tribunal in whom the law has vested the power to correct the error complained of.

After the judg

April upon a writ of error. ment of April, the case was no longer on the docket of the court, and the court had no authority to enter a continuance, nunc pro tunc, to regain a jurisdiction over the cause, when its judicial functions had ceased to exist in relation to it. As well might the court docket a new case, nunc pro tunc, with all its previous proceedings made out in form, and proceed to render a judgment upon motion, without a rule to the opposite party to show cause against it, as to do what appears by this record was done, so far as either proceeding would be justified by the law. For an authority that there was a discontinuance of this cause, and that the District Court could not again assume any jurisdiction over it, except the case had been remanded from the Supreme Court, I refer the court to Graham's practice, 493, to 8 Petersdorff, 387, and the cases there referred to. In the first case, where a venire was returnable on the first day of the term, and the distringas was dated the day after, the court held it to be a discontinuance, because every process must be tested on the day it is awarded. Here there was a space of one day, when the court had no jurisdiction over the case, and it was adjudged a discontinuance. In the case at bar, there were six months when the court had no jurisdiction over the action, and execution had been issued and returned, and a writ of error was pending; yet the court resumed a jurisdiction, entered a continuance contrary to the fact, when the case was never intended to be continued in contemplation of law, and rendered a judgment. So, in 8 Petersdorff, No. 13,390, the court say: "There is a discontinuance, because the action was not regularly continued from term to term." Here, in the case at bar, the record shows that there was not any continuance of the cause whatever. In No. 15, same page, the court say: "On a writ of error, if a continuance be not alleged, it shall be intended a discontinuance, for it is so in fact."

How the court could preface their second judgment by the *declaration that no [*267 judgment had been rendered on the verdict, when the first judgment was staring it in the face, is, to me, inconceivable. It is something more than a legal fiction.

We think the Supreme Court erred in rejecting the bills of exceptions referred to in the 9th error assigned. In the statute of Iowa of January 25, 1839, section 19, entitled, "An Act regulating practice in the district courts," etc., page 375, will be found the law of the territory relating to bills of exceptions. The statute simply requires that they should be reduced to writing during the progress of the trial. The other provisions of the statute are not material to this cause. This was done in our case. See the transcript, page 24. The bills were prepared during the progress of the We contend that the court had no power, trial; they were then reduced to writing, as at the October Term, 1842, to enter any judg- the exceptions arose. The counsel not agreement whatever in this cause; that the court ing to all the facts stated in the bills, they had not then any jurisdiction over it. The were submitted to the court for correction, in cause had been discontinued from the docket its discretion, according to the facts, and to of the court, and could not be brought before sign, seal, and deliver them into the office of the court again, either by motion or by any the clerk, with the papers in the cause, in the other process, but by a writ of procedendo from event that the motion for a new trial, held unthe Supreme Court, reversing the judgment of der advisement, should not prevail. The court

mislaid the bills, but never refused to sign them. At length they were found, signed, and returned, as seen by the record. The Supreme Court rejected them because they were not filed in time.

We hold it to be both law and universal practice, that when any controversy arises between parties, in settling a bill of exceptions, an application can only be made to the court to correct the bill, according to the facts, which the court is always presumed to possess and retain. The bills become a part of the record of the court, and are always under its control, and the court is as much bound, as an important part of its duty, to see its bills correctly made out, as it is to inspect and correct any other portion of its records and proceedings. In relation to this matter, all that we could do was to reduce our exceptions to writing, as we understood the facts to be. If the other party objected to any of our statements, a reference could alone be made to the court to decide the matter between us, and to correct the bills according to the facts. This we did, and in proper time under the statute. We submitted our bills to the court for its judgment upon them. The court held them, with the papers in the cause, to decide the motion for a new trial. The court mislaid the bills, found them again, signed and sealed them, as we had prepared them, without an alteration; the best evidence, one would think, that they were deemed, by the court, to be correct.

But the Supreme Court rejected them be268*] cause they were not in time, although the judge held them in his hands from the time of the verdict until he signed and filed them. Was it our fault that they were not sooner in the record? The cause had not come on for trial before the Supreme Court, upon the writs of error. We then applied for a mandamus to the judge below, to sign the bills, nunc pro tunc, as of the term of the trial, and when they were placed in his possession. This would have taken them out of the objections to our exceptions. But the court overruled our motion. În the haste with which this argument has been prepared, I have not been able here to refer the court to authority upon this point of our case. Most of the decisions of the courts, arising upon the subject of bills of exceptions, are based upon the particular facts of each case, or limited by statutory provisions—a case analogous to the one at bar is, probably, not to be found reported. The eleventh error assigned has been noticed in a previous part of this argument. That the court erred in reversing the first judgment of April 12th, 1842, upon the ground assumed by the court, we cannot doubt. We think the court erred, in a still greater degree, in affirming the second judgment of the 7th of October; the second judgment, which is our 12th specific error assigned. If the District Court erred, in reversing its own judgment at a subsequent term, or striking it out of the record after an execution had been issued and returned after the cause had been removed from the jurisdiction of the court by a writ of error that was then pending, it seems to us that the Supreme Court doubly erred in sustaining both

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proceedings and in affirming the second judg ment.

Mr. Grant's argument, for the defendant in error, upon the above points, was as follows:

The 9th assignment of error is the first one for the consideration of this court, to wit: "Striking the bill of exceptions of 21 December, 1843, from the records of the Supreme Court."

In discussing this point, we make this preliminary question, that this bill of exceptions is not a part of record here, and the propriety of rejecting it cannot be examined by the court. True, the clerk has sent it here, but unless it be a part of the record, the court will not examine it.

"Nothing but what constitutes the record of the court below will be examined here." Davis v. Packard, 6 Peters, 411.

"The plaintiff relies for a reversal of the judgment on his having been entitled to a continuance, in consequence of an affidavit alleged to have been made in his behalf, and on his having objected to the cancelling the order of continuance. These grounds of error, however, do not appear of record. The affidavit and objection of the plaintiff could [*69 only be shown by a bill of exceptions. The transcript of the record, to be sure, contains a copy of the affidavit of continuance, together with a statement of the clerk, that he objected to proceeding to trial after the order of continuance, and that he tendered a bill of exceptions to the opinion of the court ordering the trial, which the court refused to sign. These circumstances, however, are only the statements of the clerk, and constitute no part of the record." Wilson v. Coles, 2 Blackford, 403.

The bill of exceptions, filed with the record in the Iowa Supreme Court, was stricken from the record; it constituted a part of the record no longer, and to make it a part of the record here, it must have been embodied and made a part of the bill of exceptions to the decision of the Iowa Supreme Court. It was not. See record, pages 32 and 33.

On this point, we refer to the following authorities: Huston v. Brown, 1 Blackford, 429; Henderson v. McKee, 1 Ib. 347; Hays v. McKee 2 Ib. 11; Vanlandingham v. Fellows, 1 Scammon, 283; Huff v. Gilbert, 4 Blackford, 20.

A bill of exceptions is a "pleading of the party, and is to be construed most strongly against him who alleges the exception." Rogers v. Hale, 3 Scammon, 6.

“A bill of exceptions is the method of placing on the record matters which do not properly belong to it, and it should contain the matter so intended to be placed on the record. reference in the bill is not sufficient. Berry v. Hale, 1 Howard, Miss. 315.

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"When the clerk transcribed certain records

intended to be placed in the bill of exceptions, and stated that they were the records and executions referred to in the bill of exceptions; held, it did not spread them on the record." Maundrig v. Rigby, 4 Howard, Miss. 222.

The bill of exceptions in this case, pages 32 and 33, does not identify the paper referred to. "The bill of exceptions refers to some ex

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trinsic paper or document, which is said to be marked B, and to be considered part of the bill of exceptions; but what that document is we do not know, for, in looking through the record, we find no document which has such a mark, or is otherwise identified. It is true, there is in the subsequent history of the case a document, but it has no mark of identity with the one referred to by the judge in the bill of exceptions." Oliver v. State, 5 Howard, Miss. 14-18.

"Nothing which does not properly belong to the record is part of it, unless inserted in the bill of exceptions."

A bill of exceptions, stating that "the fol270*] lowing evidence *was offered," then adding, "here insert the same," is incomplete, and does not make part of the record of the evidence thus attempted to be embraced in it, though contained in the transcript of the record. Rankin v. Holloway, 3 Smedes & Marshall, 614.

"It is said there was a motion to quash the writ, and that the motion was improperly overruled; but as the writ is not inserted in the record, we have no means of examining the objection, and must presume the decision correct." State Bank v. Brook, 4 Blackford, 485. [Opinion in the text, near bottom of page; there is no reference to it in the marginal note.] The bill of exceptions of the District Court of Scott County was stricken from the records of the Supreme Court of Iowa; how can it be made a part of the record here, unless included in the bill of exceptions taken to their decision? Strike it out of pages 16 et seq., and what is there in the bill of exceptions, pages 32 and 33, to bring it before this court?

But admit that it is properly here, we say that the 9th error is not well assigned; the Iowa Supreme Court decided correctly in striking it from the record.

The plaintiffs in error, in their printed argument by Learned, produce no authority on this point, place great stress on the supposed fact, nowhere existing in reality, and nowhere appearing on the record, that the exceptions were by counsel reduced to writing during the progress of the trial, and by inference tendered to the court, and that the Iowa Supreme Court rejected the bill of exceptions, because it was not filed during the trial.

trial, and if it does not so appear, the error will be fatal." Patterson v. Phillips, 1 Howard, Miss. 572.

*Perhaps Howard's Mississippi Re- [*271 ports are not high enough authority for counsel. Hear the opinion of this court.

"It is not necessary," under laws of the United States, "that a bill of exceptions should be formally drawn and signed before the trial is at an end. The exception may be taken at the trial, and noted by the court, and may afterwards, during the term, be reduced to form, and signed by the judge; but in such case it is signed nunc pro tunc, and purports on its face to be the same as if actually reduced to form and signed during the trial; it would be a fatal error if it were to appear otherwise." Walton v. United States, 9 Wheat. 651.

The bill of exceptions in this cause was taken, reduced to writing, "signed and sealed this 21st December, 1843," in record, pages 23 and 24. The trial took place in October, 1841, nearly two years before.

It appears conclusively from the bill of exceptions, that it was not taken or tendered during the progress of the trial.

The statutory provisions of the Territory_of Iowa will not assist the plaintiffs in error. Indeed, they are perfectly conclusive on this point in favor of the defendant in error.

The Act of the Legislature of Iowa, approved January 25, 1839, (see first edition of Iowa Laws, printed at Dubuque in 1839), section 19, provides (375 of the statutes):

"If, during the progress of any trial, in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said bill of exceptions; and to sign and seal the same; and said bill of exceptions shall thereupon become a part of the records of such cause; and if any judge refuse to allow and sign said bill of exceptions tendered, and the same is signed by three or more disinterested by-standers, or attorneys of said court, the judge shall then permit the said bill to be filed, and become part of the record," etc.

Mr. Grant then examined the cases from Missouri and Illinois, which States had statutes similar to Iowa, citing 7 Missouri, 351; 3 Scammon, 6, 17, 24, 63; 2 Scammon, 253-256, 490. And cited, also, 9 Johns. Ch. 345; 3 Cowen, 32.

This court has decided no less than fifteen causes on bills of exceptions, down to 13 Peters. We will cite only such as bear directly on the case at bar.

Walton v. United States, 9 Wheaton, 657, has been referred to. Ex parte Martha Bradstreet is, to our mind, conclusive for our client.

"Most of the decisions of the courts," says Learned, for plaintiffs in error, "on the subject of bills of exceptions, are based upon the particular facts of each case, or limited by statutory provisions. A case analogous to the one at bar is, probably, not to be found reported." If by this he refers to his side of the case, we shall not deny it, but we show both authority and statutory provisions in favor of reject- "On the trial of a cause in the District Court ing this bill of exceptions. The words, "no of New York, exceptions were taken to the entry of record," that the bill of exceptions opinions of the court, delivered during the progwas tendered at the trial, are emphasized in ress of the trial; and, some time after the the statement of the counsel for the plaintiffs trial *was over, a bill of exceptions was [*272 in error, thereby intending, we suppose, to contendered to the judge, which he refused to sign, vey the idea that it appears in some other way. "The statement of the bill of exceptions, as to the time when it was taken, will prevail over the memorandum of the clerk." Carpnew v. Carravan, 4 Howard, Miss. 370.

"The bill of exceptions must show affirmatively that the exception was taken at the

objecting to some of the matters stated in the same, and at the same time altering the bill so tendered, so as to conform to his recollections of the facts, and inserting in the bill all that he deemed proper to be contained in the same; which bill, thus altered, was signed by the judge."

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