ENGLAND
v.
GEBHARDT
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England sought to remove a lawsuit to federal court based on diversity of citizenship, but the trial court found that the parties were not citizens of different states and denied the removal. On writ of error to the Supreme Court, England challenged this finding of fact, but the record lacked a bill of exceptions, agreed statement of facts, or other proper mechanism to present the evidence underlying the trial court's decision for appellate review. The Supreme Court affirmed the remand order, holding that factual findings made at trial cannot be reviewed on writ of error unless they are properly preserved in the record through appropriate procedural means.
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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 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. But as a writ of error brings up for review only such errors as are apparent on the face of the record, it follows that nothing can be considered here on such a writ in this class of cases, any more than in others, that is not presented in some appropriate form by the record. This record shows an averment in the petition for removal that the parties to the suit were citizens of different States, and a finding of the court that they were not. This implies the finding of a fact upon evidence submitted upon a hearing by the court, but before the questions presented and decided at such a hearing can be re-examined on a writ of error, they must be brought into the record by a bill of exceptions, or an agreed statement of facts, or a special finding in the nature of a special verdict, or in some other way known to the practice of courts of error for the accomplishment of that purpose. Storm v. United States, 94 U. S. 76, 81; Suydam v. Williamson, 20 How. 427; Baltimore & Potomac Railroad Co. v. Trustees Sixth Presoyterian Church, 91 U. S. 127, 130. That this rule is applicable to the class of cases to which that now under consideration belongs was expressly decided in Kearney v. Denn, 15 Wall. 51, 56.
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. Sargeant v. State Bank of Indiana, 12 How. 371, 384; Fisher v. 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 from Bronson v. Schulten, 104 U. S. 410, 412, where the order setting aside the judgment referred to and identified in 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.
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Citator
Cited By (23 total)
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Engelke & Feiner Milling Co. v. Isador Grunthal, 46 Fla. 349 (Fla. 1903)
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United States v. Hark, 320 U.S. 531 (U.S. 1944)…rch 5, but it was made before March 29. Even if the actual date when it was placed on the docket is to control, an appeal taken April 30 would be out of time. In the federal courts an opinion is not a part of the record proper, England v. Gebhardt, 112 U. S. 502, 506; and in some jurisdictions the docket entries are not. United States v. Resnick, 299 U. S. 207; United States v. Midstate Horticultural Co., 306 U. S. 161. Compare United States v. Swift & Co., 318 U. S. 442, 446. United States v. Stevenson,…
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Loeb v. Columbia Twp. Trs., 179 U.S. 472 (U.S. 1900)…? May we not look to it for the purpose of ascertaining whether it was claimed that the state law contravened the Constitution of the United States ? It is said that we cannot, and that view is supposed to be sustained by England v. Gebhardt, (1884) 112 U. S. 502, 505, 506, which was a. writ of error to review a judgment of a Circuit Court remanding to the state court a case removed therefrom under section five of the act of March 3, 1875, c. 137, 18 Stat. 472. In the [*482] petition for removal in that case…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Bronson v. Schulten, 104 U.S. 410 (U.S. 1881)
- R.R. Co. v. Wiswall, 23 Wall. 507 (U.S. 1874)
- Ins. Co. v. Comstock, 16 Wall. 258 (U.S. 1872)
- Suydam v. Williamson, 20 How. 427 (U.S. 1857)
- Storm v. United States, 94 U.S. 76 (U.S. 1876)
- ST. Paul & Chicago Ry. Co. v. McLEAN, 108 U.S. 212 (U.S. 1883)
- Babbitt v. Clark, 103 U.S. 606 (U.S. 1880)
- Baltimore & Potomac R.R. Co. v. Trs. of Sixth Presbyterian Church, 91 U.S. 127 (U.S. 1875)
- Lessee of John Fisher v. Cockerell, 5 Pet. 248 (U.S. 1831)
- United States v. Spicer, 15 Wall. 51 (U.S. 1872)