Court of APReiils,
:/ UNITED STATES Y. OARR etLal; Ms,,. 1,
A blIlof exceptions signed ,and tiled after,the term at which judgment Is , entered does not become Pl,l,l't ,of the record, and wlll be Ignqred, unless it affirmatively appears that it was so !lign\lC!. and filed by consent of parties. or in compllance with a standing ruleQf court, or an order made and entered of record at the trial term,orllDless it appears that the court's, control over the recordwll.spreserved by the pendency of a motion for . : new trial.
BILL OP' 'EXCEPTIONS-SuiNtNGAND Fn,ING AII"tER TERM.
, show' with sutficient certaintY a waiver by a stipulation in writing, as required by Rev. 'St. § 649. :' ,
,NOT RAIlI:IlftlBELow-'-"Issa,lIlS' NOT TRIED.
" ,4 recitid bithe recordJIiat a jury,was"expressly waived" does not
Where no demurrer to an answer claiming credits for, fees. foroflicial the t:ight to suc)l fees, if the services a(ltually rendered, annat be considered by the circuit court' of appeals. ",
WAIVER OF . JURY.
4. 'SAME-STIPULATION' AS
A stipulation admitting ,qer:tain facts, where there is nothing to show that the cause was to the courtol1 the facts stated therein, does ' ,not constitute an on which an apppllate court can consider to have been rendered' on the Whether the jUdgment is such as agreed facts.
In Error to,the CiJ;'cuitCourt of the United States for the District of Wyoming. This was an, action by the United States against Thomas J. Carr, ' Charles F. Miller, Luke VQorhees, Elias W.Whitcomb, and John W. Cpllins, on theoftlcial bond of said Carr as United States marshal, wherein the other defendants were spreties. Defendants' answer claimed credits for certain fees andothe,r compensation as due said . mar.shal. The .circuit court, on trial without a jury, allowed part of said credits, and rendered judgment for the United States for the reaidue of the amount claimed. The United. States brings error. Benjamin F. Fowler :flle!i brief for the United States. Willis Van Devanter (John W. Lacey, on the brief), for defendants in error. Before C,ALDV\TELL and. SANBOror;Circuit Judges, and THAY· ER, District Judge. , .
THAYER, Dis1<clct ,Judge·. ', This suit by States upon the official bond of the.UnitedStates marshal for, the territory of Wyom'ing, which was executed by the marshal sureties, the defendants in error, on the 23d day of August, 1886. For a breach of the bond, the government alleged that the marshal had failed and refused to pay over' to the proper accounting officers of the treasury department of the United States the sum of $773.11, which was the property of the United States, and which it was his duty as marshal to so pay. The defendants admitted the receipt
. 'UNITED STATES V. CARR.
by the marshalofthe aforesaid sum ofmoneY,'and his failure to pay the same to the United States, but they averred in their answer to the complaint that the United States was indebted to the marshal in the sum; of $404.87 for fees, mileage, and 6ther compensation justly due to him for services rendered as United States marshal for the territory of Wyoming, which sum they prayed might be allowed to him and deducted from the amount claimed by the government. Attached to the answer was an itemized statement of the various sums claimed to be due to the marshal for fees, mileage, etc., the whole amount claimed aggregating the sum last stated. No reply to the answer a.ppears to have been filed, and, so far as the record shows, the sufficilmcy of the defendants' answer was not called in question in any form, either by a demurrer, motion, or exception. The record contains a stipulation, signed by counsel for the respective parties, whereby they appear to have admitted certain facts pertinent to the issues raised by the pleadings; but this stipulation fails to show that the cause was submitted to the court upon the facts stated therein. On the contrary, the record recites that "the cause, coming on for hearing, and a jury being expressly waived, is submitted to the court upon the pleadings and evidence after being fully argued by counsel." It further appears from the record that the circuit court allowed the marshal $894.25 of his claim for fees' and expenses, and that it rendered a jUdgment in favor of the United States for the residue of its demand, to wit, for the sum of $382.86. This judgment was entered of record On the 1st day of April, 1893, during the November term, 1892, of the circuit court . for the district of Wyoming. That term expired by law prior to the second Monday of May, 1893; but the bill of exceptions was not settled, signed, nor filed until the 22d day of August, 1893. The record fails to show that the time for filing a bill of exceptions was extended to August 22, 1893, by an order made and entered of record at the trial term. It fails to show that it was signed and filed in compliance with a standing rule of the circuit court of the district of Wyoming, or that it was so filed by consent of parties either oral or written. This court has recently held in the case of Railway Co. v. Russell, 60 Fed. 501, that a bill of exceptions which is signed and filed after the lapse of the term at which the judgment is entered does not become a part of the record, and will be ignored, unless it affirmatively appears that it was so signed and filed by consent of parties, or in compliance with a standing rule of court, or an order made and entered of record at the trial term, or unless it appears that the court's control over the record was preserved during the succeeding term by the pendency of a motion for a new trial, as in the case of Woods v. Lindvall, 1 C. C. A. 34, 4 U. S. App. 45, and 48 Fed. 73. It follows, therefore, that the present bill of exceptions constitutes no part of the record, and presents no question which this court is authorized to review. Moreover, the recital found in the present record,that a jury was "expressly waived" does not show that a jury was waived by a stipulation in writing, with sufficient certainty to meet the requirements of the decision of the supreme court of the United States in the case of Bond
Y.'jDustin, 112 U. S.604,5Sup. Ot.296, and of this court in Rush 'to Newman, 7 O. O.A. 13.6,58. Fed. 158, 160. This latter suggestion, however, is not important"for the reason, above stated, that there is in the present case no· bill, of exceptions which can operate to bring the testimony or any of the rulings of the trial court upon the record. It follows, we think, in: view of numerous fe'deraladjudications, that as an appellateoourt we are limited in otlrexamination of the .case in hand to the single inquiry whether the complaint filed in the circuit court was adequate to support the judgment, and that can hardly be regarded as a debatable question. Bond v. Dustin, supra; .Andes v; Slauson, 130.U. .s. 435,·438, 9 Sup. Ot. 573; Railway 00. v. Henson, 7 O. O. A. 349, 58 Fed: 531; Merrill v' Floyd, 2 O. .c. A. 58, 50 Fed. 849; Walker ,v., Miller, A. 331, 59 Fed. 869. It is apparent frolXl the judgment: entry that the circuit court allowed the ,defendants in error a credit for a large portion of the feesmentiolled in the exhibit attaphed to the defendants' answer; but, alii no demurrer was interposed to the plea .claiming these crediU!, .there is nothing in the record to indicate that the government contested the marshal's right to such allowances if the services charged for were actually-rendered. It follows,therefore, that this court willunot undertake to determine whether.the fees in question, or any of them, wa-e properly allowed as a credit, inasmuch as it does not appear that an issue of that kind was raised and decided by the trial court.! Railway, 00. v' Henson, supra; Elliott, App. Fooc. ,§§470, 476. We have all'eady alluded to the fact that the stipulation found in the record does not constitute "an agreed case;", because it does not appear that the case was submitted to the c(mrtfor its decision upon the facts recited 'in such We are accordingly precluded from considering the question whether the judgment is such as ought to have, ,been rendered on the agreed facts, as we might have done if it clearly appeared that the stipulation was intended to state an agreed case according to the practice approved inU. S. v.Bliasson, 16 Pet; 291; also,. inStimpsonv. Railroad 00., 10 How. 329, and Burr v. Navigation Co., 1 Wall. 102. Finding. no reversible error in. the record, the judgment of the Circuit court is hereby affirmed.
SOOFIELD et,al. v. PARLIN & ORENDORFF 00. (Oircuit Oourt ot Appeals, Seventh Oircuit. May .1, 1894.) No.lBO. 1.
EVIDENCE-LETTER-PRES'UMPTION OF GENUINENESS.
A letter received In due course of mall In response to a letter sent by the is presumed, in.the absence of any showing to the contrary, to be the letter Of the person whose name is signed to it.
SAHE-ADMISS10NCONTAIJll.ED IN OFFER OF COMPROMISE.·'
Where theexecntion,ot'tlll!! contract sued on is denied by the defendant, s letter offering tocomprottllse the claim, and making an express recognition of the contract, is· admissible in evidence as an admission of the execution. of the. contract.