ELLIOTT V. TOEPPNER, 187 U. S. 327 (1902)

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U.S. Supreme Court

Elliott v. Toeppner, 187 U.S. 327 (1902)

Elliott v. Toeppner

No. 85

Submitted November 12, 1902

Decided December 8, 1902

187 U.S. 327


The right of a person against whom an involuntary petition of bankruptcy has been filed to a trial by jury under section 19 of the Bankruptcy Act is absolute, and cannot be withheld at the discretion of the court.

The trial is a trial according to the course of the common law, and the court cannot enter judgment, as the chancellor may, contrary to the verdict, but the verdict may be set aside or the judgment may be reversed for error of law, as in common law cases.

The distinction between a writ of error which brings up matter of law only, and an appeal, which, unless expressly restricted, brings up both law and fact, has always been observed by this Court and recognized by the legislation of Congress from the foundation of the government.

Congress did not attempt by section 25a of the Bankrupt Act, which provides for appeals as in equity cases from the district court to the circuit court of appeals from judgments adjudging or refusing to adjudge the defendant a bankrupt, to empower the appellate court to reexamine the facts determined by a jury under section 19 otherwise than according to the rules of the common law. The provision applies to judgments where trial by jury has not been demanded and the court proceeds on its own findings of fact. In such case, the facts and the law are reexaminable on appeal; but in case of a jury trial, the judgment is reviewable only by writ of error for error in law, and alleged errors in instructions, the giving or refusal of instructions or in the admission or rejection of evidence which must appear by exceptions duly taken and preserved by bill of exceptions

Page 187 U. S. 328

in the absence of which such alleged errors cannot be considered, although the transcript of the record contains what purports to be the evidence heard by the jury, exceptions reserved to evidence, admitted or excluded, the charge and exceptions, instructions asked and refused, and exceptions.

Elliott and others filed their petition for the adjudication of Ferdinand Toeppner as a bankrupt in the District Court of the United States for the Eastern District of Michigan, which averred that Toeppner was insolvent, and that he had committed certain enumerated acts of bankruptcy under subdivisions (1), (2), and (3) of section 3a of the Bankruptcy Act. Toeppner answered, denying that he was insolvent at the time the petition was filed, and denying insolvency at the time of the commission of the acts charged under subdivisions (2) and (3), and at the same time filed in writing his demand for a jury trial. The issues were tried before a jury, who returned a verdict of not guilty. A motion for new trial was made and overruled, and the court entered judgment adjudging that Toeppner was not a bankrupt and dismissing the petition. From this judgment petitioners prayed an appeal to the circuit court of appeals, accompanied with an assignment of errors. No bill of exceptions was asked or taken, and no writ of error was asked or allowed.

The appeal was allowed and duly perfected by giving the bond required, and a transcript of the record was filed in the Circuit Court of Appeals for the Sixth Circuit, which included, in addition to the proceedings before stated, what purported to be the evidence heard by the jury; exceptions reserved to evidence admitted or excluded, the charge of the court, and exceptions, and instructions asked and refused, and exceptions.

The errors assigned related exclusively to errors alleged to have been committed during the trial, before the jury, of the issues submitted.

By the certificate to the transcript by the clerk of the district court, and under its seal, it was certified that

"the above and foregoing is a full and true transcript of the record in the matter above entitled; that I have carefully compared the same with the original records and files of said matter in my office, and find the same to be a true transcript of the said originals

Page 187 U. S. 329

and of the whole thereof, together with the original exhibits produced on the trial of said matter."

After the transcript had been filed, Toeppner moved the circuit court of appeals to dismiss the appeal, and to strike from the transcript so much as purported to set out the proceedings on the jury trial of the issues submitted to the jury. The motions coming on to be argued, the court, being in doubt, certified a statement of the foregoing facts to this Court, together with the following question:

"Has this Court, under the appeal granted from the judgment refusing to adjudicate Ferdinand Toeppner a bankrupt, authority to reexamine the proceedings upon the jury trial, and remand for a new trial if it shall appear from the transcript, as certified to us that there was error in instructions given or refused, or in the admission or rejection of evidence?"

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