Supreme Court of United States.
*327 Mr. J.J. Darlington and Mr. C.C. Cole for appellant and plaintiff in error.
Mr. E.H. Thomas, with whom Mr. Andrew B. Duvall was on the brief, for appellee and defendant in error.
*328 MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
Assuming that the matters complained of are susceptible of review by this court, the first question is whether our jurisdiction is dependent upon the appeal or the writ of error.
That a proceeding involving the exercise of the power of eminent domain is essentially but the assertion of a right legal in its nature has been determined. So also the decisions of this court have settled that a condemnation proceeding initiated before a court, conducted under its supervision, with power to review and set aside the verdict of the jury, and with the right of review vested in an appellate tribunal, is in its nature an action at law. Kohl v. United States, 91 U.S. 367, 376; Searl v. School District No. 2, 124 U.S. 197; Chappell v. United States, 160 U.S. 499, 513.
The proceedings provided for in the act of June 6, 1900, being of this character, it is, we think, manifest that the jurisdiction of this court can be exercised only by writ of error.
When both the proceeding by appeal and that by writ of error were allowed the jurisdiction of this court to review the judgments and decrees of the Court of Appeals of the District of Columbia was regulated by section 233 of the Code of the District of Columbia. 31 Stat. 1189, 1227. In effect that section was but a reenactment of the then existing provisions of the eighth section of the act of February 9, 1893, which act established the Court of Appeals of the District of Columbia. By said section of the code the power of this court to review by writ of error or appeal the judgments or decrees of said Court of Appeals, excluding certain exceptional and enumerated cases, is limited to cases where the matter in dispute, exclusive of costs, exceeds the sum of five thousand dollars, and such power to review is to be exerted only in the same manner and under the same regulations as theretofore prevailed before the organization of the Court of Appeals in cases *329 of writs of error on judgments or appeals from decrees rendered in the Supreme Court of the District of Columbia.
Now, as it is settled by the authorities previously referred to that the proceeding in question was legal in its nature and not one of equitable cognizance, and as it has also been settled that the jurisdiction of this court prior to the act of 1883, to review the final judgments or decrees of the Supreme Court of the District of Columbia, did not give power to review by appeal, a matter not of equitable cognizance, Ormsby v. Webb, 134 U.S. 47, 64, it necessarily follows that we are without jurisdiction to review the action of the Court of Appeals of the District of Columbia on the appeal here taken, and that appeal must, therefore, be dismissed.
Thus disposing of the appeal we come to consider the case on the writ of error. The errors assigned in the brief of counsel are as follows:
"The court below erred in sustaining the trial court:
"1st. In refusing to set aside the assessment because not supported by the evidence, and because contrary to the same and the weight thereof.
"2d. In refusing to instruct the jury that no assessment could be made against it as a corporation, but only against such of its property, if any, as might be benefited.
"3d. In refusing to instruct the jury that no assessment of benefits could be made against appellant."
In view of the condition of the record, as disclosed by the statement of the case which we have made, we are of opinion that we cannot pass upon the errors embraced by these assignments.
The inability so to do results from the fact that there is no bill of exceptions in the record showing that the Supreme Court of the District of Columbia was asked to and refused to give the alleged instructions upon which the second and third assignments of error depend, nor does it appear, from a bill of exceptions or in any other appropriate mode, upon what the Supreme Court of the District of Columbia acted *330 in considering the exception expressly stated to be based upon the evidence. Not only this, but there is nothing of record exhibiting the fact that any exception was duly taken to the action of the court in overruling the objections urged by the railroad company to be confirmation of the verdict of the jury.
True it is that the transcript contains what purport to be certain instructions asked and refused, marked filed by the clerk. True also is it that there is in the printed transcript a petition and other papers concerning the evidence given before the jury, to which we have referred in the statement of the case. And it is also true that there is in the printed transcript an agreement between counsel, reciting that the court allowed the prayer of the petition. But in the absence of a bill of exceptions, allowed and authenticated by the judge, these documents form no part of the record in this court, which we have alone the right to consider in determining the merits of the errors assigned. Young v. Martin, 8 Wall. 354; Baltimore & Potomac R.R. Co. v. Sixth Presbyterian Church, 91 U.S. 127; Clune v. United States, 159 U.S. 590, 593; Nelson v. Flint, 166 U.S. 276, 279.
In Young v. Martin, where entries had been made by the clerk in his minutes, stating the filing of a demurrer, argument thereon and overruling of the demurrer, and that the exception had been taken by plaintiff, it was held that the exception was not available. The court said (p. 356):
"These entries do not present the action of the court and the exceptions in such from that we can take any notice of them. It is no part of the duty of the clerk to note in his entries the exceptions taken, or to note any other proceedings of counsel, except as they are preliminary to, or the basis of, the orders or judgment of the court."
It may be observed in passing that whilst it is not now necessary to seal a bill of exceptions, Rev. Stat. sec. 953, the other requisites referred to are essential.
In Baltimore & Potomac R.R. Co. v. Sixth Presbyterian *331 Church a case similar in character to that under review the court said (pp. 130, 131):
"Neither depositions nor affidavits, though appearing in the transcript of a common law court of errors, can ever be regarded as a part of the record, unless the same are embodied in an agreed statement of facts, or are made so by a demurrer to the evidence, or are exhibited in a bill of exceptions.
"Exceptions may be taken by the opposite party to the introduction of depositions or affidavits; and the party introducing such evidence in a subordinate court may insist that the court shall give due effect to the evidence, and, in case of refusal to comply with such request, may except to the ruling of the court, if it be one prejudicial to his rights. Where neither party excepts to the ruling of the court, either in respect to its admissibility or legal effect, the fact that such a deposition or affidavit is exhibited in the transcript is not of the slightest importance in the Appellate Court, as nothing of the kind can ever constitute the proper foundation for an assignment of error. Suydam v. Williamson, 20 How. 433.
"Inquisitions like the present one bear a strong analogy in many respects to the report or award of referees appointed under a rule of court, to whom is referred a pending action. Referees in such cases make their report to the court; and in such a case the report, unlike an award at common law, must be confirmed before the prevailing party is entitled to the benefit of the finding of the referees. When the report is filed in court the losing party may file objections in writing to the confirmation of the report, and may introduce evidence in support of the objections; and it is well-settled law that the ruling of the court in overruling such objections is the proper subject of a bill of exceptions. Railroad v. Myers, 18 How. 250."
In Clune v. United States, in the course of the opinion the court said (159 U.S. 593):
*332 "Finally, there is a claim of error in the instructions, but the difficulty with this is that they are not legally before us. True, there appears in the transcript that which purports to be a copy of the charge, marked by the clerk as filed in his office among the papers in the case; but it is well settled that instructions no not in this way become part of the record. They must be incorporated in a bill of exceptions, and thus authenticated by the signature of the judge. This objection is essentially different from that of the lack or the sufficiency of exceptions. An appellate court considers only such matters as appear in the record. From time immemorial that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or recognized method have been made a part of it."
That parties by their affidavits or agreements cannot cause that to become a bill of exceptions which is not such in a legal sense, is settled. Nelson v. Flint, 166 U.S. 276, 279; Malony v. Adsit, 175 U.S. 281, 285, and cases cited.
As it results that the record before us does not exhibit error, the judgment of the Court of Appeals of the District of Columbia must be and it is
Affirmed.
