[Download] "Kearney v. Case" by United States Supreme Court ~ eBook PDF Kindle ePub Free
eBook details
- Title: Kearney v. Case
- Author : United States Supreme Court
- Release Date : January 01, 1870
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 55 KB
Description
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.1 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;2 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.