ANDES
v.
SLAUSON.
No. 225.
Supreme Court of United States.
Argued March 29, 1889. Decided April 15, 1889. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.*438 Mr. Isaac H. Maynard for plaintiff in error.
Mr. John B. Gleason for defendant in error.
MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.
The authority of this court to review the judgments of the Circuit Court by bill of exceptions and writ of error is regulated exclusively by the acts of Congress and the practice of the courts of the United States, without regard to the statutes of the State or the practice of its courts. Chateaugay Co., petitioner, 128 U.S. 544. The right of review is limited to questions of law appearing on the face of the record, and does not extend to matters of fact or of discretion; questions of law arising upon the trial of an issue of fact cannot be made part of the record by bill of exceptions, unless the trial is by jury, or by the court after due waiver in writing of a jury trial; and when the trial is by rule of court and consent of parties before a referee or arbitrator, no question of law can be reviewed on error, except whether the facts found by him support the judgment below. Campbell v. Boyreau, 21 How. 223; Bond v. Dustin, 112 U.S. 604, 606; Paine v. Central Vermont Railroad, 118 U.S. 152.
In the present case, there was no demurrer, or case stated, or special verdict, or finding of facts by the court or by a referee, presenting a pure question of law. But the pleadings presented issues of fact which, in the legal and regular course of proceeding, could be tried by a jury only, and at a stated term of the court, unless the parties either in writing waived a jury and submitted the case to the court's decision, or else agreed that the case should be tried and determined by a referee. There was no waiver of a jury trial and submission of the determination of all issues of fact to the court. But the case was tried by consent of the parties before the judge at chambers under an order providing that it should be so tried, *439 and that "if it shall appear to the judge upon such trial that there are questions of fact arising upon the issues therein, of such a character that the judge would submit them to the jury if one were present," they should be submitted to a jury at the next term of the court; and the only finding of the judge was a general finding for the plaintiff.
The trial thus ordered, consented to and had, was neither a trial by jury, nor a trial by the court, in accordance with the acts of Congress, but was a trial by the judge as a referee. The trial deriving its whole efficacy from the consent of the parties, the bill of exceptions allowed at that trial was irregular and unavailing, and the facts stated in that bill of exceptions cannot be regarded, nor the rulings stated therein reviewed, by this court. As the questions argued by the plaintiff in error do not appear of record independently of the bill of exceptions, this court has no authority to pass upon them, and no error is shown in the judgment afterwards rendered by the Circuit Court. Campbell v. Boyreau, above cited; Lyons v. Lyons Bank, 19 Blatchford, 279.
Judgment affirmed.