
76 U.S. 425 (____)
9 Wall. 425
FLANDERS
v.
TWEED.
Supreme Court of United States.

*427 Mr. Hoar, Attorney-General, and Mr. W.A. Field, Assistant Attorney-General.
*428 Messrs. Ashton and T.D. Lincoln (a brief of Messrs. Billings and Hughes being filed), contra, argued.
Mr. Justice NELSON delivered the opinion of the court.
The statement of facts by the judge is filed upon the 29th May, 1868, nearly three months after the rendition of the judgment. This is an irregularity for which this court is bound to disregard it, and to treat it as no part of the record. The statement made out of court is, of course, no evidence before us of the facts stated, and this is the only evidence relied on, of the consent of the parties to waive a jury, except what may be presumed from the circumstance that both parties proceeded with the trial before the judge without objection in the court below. The objection is now taken here by the plaintiff in error.
It is impossible to misunderstand the condition upon which, according to the act of March 3d, 1865, the parties are authorized to waive a trial by jury, and substitute the court, and, at the same time, save to themselves all the rights and privileges which belong to them in trials by jury at common law. That condition is the filing with the clerk a written stipulation, signed by the parties, or their attorneys. *429 The necessity of this law, for the purpose designed, will appear by a reference to a few of the decisions of this court. One of the latest is the case of Campbell et al. v. Boyreau.[*] It came up on error from the Circuit Court of the United States for the Northern District of California, and was an action of ejectment before the court, the jury having been waived by the express agreement of the parties. The opinion was delivered by the Chief Justice. He observed: "It appears by the transcript that several exceptions to the opinion of the court were taken at the trial by the plaintiffs in error,  some to the admissibility of evidence, and others to the construction and legal effect which the court gave to certain instruments in writing. But, it is unnecessary to state them particularly, for it has been repeatedly decided by this court that, in the mode of proceeding which the parties have seen proper to adopt, none of the questions, whether of fact or of law, decided by the court below, can be re-examined and revised in this court upon a writ of error." He also observed: "The point was directly decided in Guild and others v. Frontin,[] which, like the present, was a case from California, where a court of the United States had adopted the same mode of proceeding with that followed in the present instance; and the decision was, again, reaffirmed in the case of Suydam v. Williamson and others,[] and also in the case of Kelsey and others v. Forsyth, decided at the present term."[§] He then states the grounds of these decisions, namely, "that by the established and familiar rules and principles which govern common law proceedings, no question of law can be reviewed and re-examined in an appellate court upon a writ of error (except only where it arises upon the process, pleadings, or judgment, in the case), unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts, and referring the questions of law to the court."
The opinion contains a very full exposition of the principles *430 and proceedings in the common law cases, and the departure from them in trial of issues of fact before the court. This case, and those referred to by the learned Chief Justice, establish beyond question that the act of Congress was essential in order to preserve to the parties submitting a cause to a trial before a court, both as to law and fact, the benefit of a review or re-examination of questions of law in the appellate court. The act, while it provides specially the mode of submission, takes care to secure to the parties the right of review as it respects all questions of law arising out of the facts found by the court, giving to this finding the effect as if found by a jury, preserving, at the same time, the right of exceptions to the rulings of the court in the progress of the trial; and, when the finding is special, a right to the appellate court to determine the sufficiency of the facts found to support the judgment.
This act of Congress is the first one that has authorized the parties to dispense with a jury, and try the issue of fact before the court, in respect to all the Federal courts in the Union, except two special acts, one in respect to the State of Louisiana, in 1824, and California and Oregon, in 1864.[*] And it is quite important to settle the practice under it at an early day, and with a precision and distinctness that cannot be misunderstood. The act passed May 26th, 1824, relating to the courts in Louisiana, directed that the mode of proceeding in civil causes, in the Federal courts in Louisiana, should be the same as the practice and modes of proceeding in the District Courts of that State, subject to certain modifications mentioned in the act. The practice in these courts of the State was according to civil law proceedings, and the trial of issues of fact could take place before the court by consent of the parties. This act, unfortunately, not prescribing the mode of procedure when a jury was waived, and the trial before the court, as in the act of 1865, leaving the court to grope its way as best it could under the practice in civil law proceedings, the case to come up ultimately for *431 re-examination before a common law appellate tribunal, has led to the most painful and oftentimes protracted litigation at nearly every term since its passage, and that, too, not upon questions involving the merits, but questions of mere practice. As observed by Mr. Justice Grier in Graham v. Bayne,[*] "The very numerous cases on this subject, from Field v. United States[] to Arthurs v. Hart,[] show the difficulties we have had to encounter in reconciling our modes of review to the civil code of practice as used in the courts of Louisiana;" and these cases have not diminished since the delivery of the opinion in that case.
The history of the proceedings in the Federal courts in Louisiana under the act of 1824 admonishes us, if we may expect to avoid the like difficulties and disorders under the act of 1865, to require, in all cases, where the parties see fit to avail themselves of the privileges of the act, a reasonably strict conformity to its regulations. We have already held[§] that this act of 1865 applies to the Federal courts in the State of Louisiana.
A copy of the stipulation of the parties, or attorneys, filed with the clerk, waiving the jury, should come up with the transcript in the return to the writ of error, so that the court could see that the act had been complied with. There having been no stipulation, nor any finding of the facts, in this case, and no question upon the pleadings, it would follow, according to the general course of proceeding in like cases, heretofore in this court, that the judgment below should be affirmed. There are, however, cases which, under very special circumstances, the court have made an exception, and have simply dismissed the writ of error, as in the case of Burr v. The Des Moines Company,[] or have reversed the judgment below for a mistrial, and remand it for a new trial, as in the case of Graham v. Bayne.[¶] See also Guild v. Frontin.[**] In the present case it is apparent the parties below supposed that they had made up a case, according to the *432 practice in Louisiana, from the finding of the facts by the court, that would entitle them to a re-examination of it here; but as the court did not make it up, and file it, as of the date of the trial and judgment, it cannot be regarded as a part of the record; and, under the circumstances, the case being an important one, and intended to be carried up here for re-examination, we shall REVERSE the judgment for a mistrial, and REMAND it to the court below
FOR A NEW TRIAL.

[See supra, 125, Norris v. Jackson.]
NOTES
[*]  21 Howard, 223.
[]  18 Id. 135.
[]  20 Id. 432.
[§]  21 Id. 85.
[*]  13 Stat. at Large, 4.
[*]  18 Howard, 61.
[]  9 Peters, 182.
[]  17 Howard, 6.
[§]  Insurance Company v. Tweed, 7 Wallace, 44.
[]  1 Id. 99.
[¶]  18 Howard, 60.
[**]  Ib. 135.
