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Opinion of the Court.

general finding of the court for the plaintiff upon the evidence adduced at the trial presented no question of law which the court could review. In that case there was no agreed statement of facts.

Here, although there is a general finding in favor of the defendant, yet there is a statement of facts which contains certain ultimate facts together with certain other facts evidential in their nature from which an important and ultimate fact might be inferred, but in regard to which there is no agreement or finding whatever. In such case it would not be proper to regard the agreed statement as a sufficient finding of ultimate facts within the statute.

In Raimond v. Terrebonne Parish, 132 U. S. 192, it was said that the agreed statement of facts by the parties or a finding of facts by the Circuit Court must state the ultimate facts of the case, presenting questions of law only, and not be a recital of evidence or of circumstances which may tend to prove the ultimate facts or from which they may be inferred.

In Glenn v. Fant, 134 U. S. 398, there was a stipulation that the case should be heard upon an agreed statement of facts annexed, with leave to refer to exhibits filed therewith. It was held that the stipulation could not be regarded as taking the place of a special verdict or of a special finding of facts, and that the court had no jurisdiction to determine the question of law arising thereon.

It is true there was no bill of exceptions in that case, but the bill in this case presents no exception taken during the progress of the trial, and only contains an exception to the conclusion of the trial court in ordering judgment upon the issues in favor of the defendant.

Lehnen v. Dickson, 148 U. S. 71, 77, decided that any mere recital of the testimony, whether in the opinion of the court or in a bill of exceptions, could not be deemed a special finding of facts within the scope of the statute; and if there were a general finding and no agreed statement of facts, the court must accept that finding as conclusive and limit its inquiry to the sufficiency of the complaint and to the rulings, if any be preserved on questions of law arising during the trial. The court, in the opinion written by Mr. Justice Brewer, said:

Opinion of the Court.

“But the burden of the statute is not thrown off simply because the witnesses do not contradict each other, and there is no conflict in the testimony. It may be an easy thing in one case for this court, when the testimony consists simply of deeds, mortgages or other written instruinents, to make a satisfactory finding of the facts, and in another it may be difficult when the testimony is largely in parol, and the witnesses directly contradict each other. But the rule of the statute is of universal application. It is not relaxed in one case because of the ease in determining the facts, or rigorously enforced in another because of the difficulty in such determination. The duty of finding the facts is placed upon the trial court. We have no authority to examine the testimony in any case, and from it make a finding of the ultimate facts."

In St. Louis v. Western Union Telegraph Company, 166 U.S. 388, it was held that the special finding of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court is not a mere report of the evidence, but a finding of those ultimate facts, upon which the law must determine the rights of the parties, and if the finding of facts be general, only such rulings made in the progress of the trial can be reviewed as are presented by a bill of exceptions, and in such case the bill cannot be used to bring up the whole testimony for review any more than in a trial by jury.

We now hold, in accordance with the authorities, that an agreed statement of facts which is so defective as to present, in addition to certain ultimate facts, other and evidential facts upon which a material ultimate fact might bave been but which was not agreed upon or found, cannot be regarded even as a substantial compliance with the statute. Being concluded by the general finding of the issues in favor of defendant, there is no error in the record, and the judgment must be

Afirmed. VOL. CLXXXIII-9

Counsel for Parties.




No. 62. Submitted October 29, 1901.--Decided December 2, 1901.

The judgment of the Supreme Court of a State reversing that of the court

below, and remanding the case for further proceedings to be had therein, is not a final judgment, por is this court at liberty to consider whether such judgment was an actual final disposition of the merits of the caso. The face of the judgment is the test of its finality.

This was an action brought originally in the Circuit Court for Greene County, Missouri, by the Haseltines against the Central National Bank, to recover double the amount of certain alleged usurious interest paid by the plaintiffs to defendant, and which they sought to recover under the second clause of Rev. Stat. sec. 5198, providing that "in case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same.”

The trial court rendered judgment in favor of the plaintiffs for $831.70. From this judgment defendant appealed to the Supreme Court of the State, which reversed the judgment of the trial court upon the ground that the plaintiffs had neither paid nor tendered the principal sum due, and remanded the cause “for further proceedings to be had therein, in conformity with the opinion of this court herein delivered.”

Defendant moved to dismiss the writ of error upon the ground that this was not a final judgment.

Mr. S. A. Haseltine and Mr. James Baker for plaintiffs in


Mr. John Ridout for defendant in error.

Opinion of the Court.

MR. JUSTICE Brown delivered the opinion of the court.

The motion to dismiss must be granted. We have frequently held that a judgment reversing that of the court below, and remanding the case for further proceedings, is not one to which a writ of error will lie. The case of Mower v. Fletcher, 114 U. S. 127, is not in point, as the judgment of the Supreme Court of the State remanded that case to the inferior court with an order to enter a specified judgment, nothing being left to the judicial discretion of the court below. A like ruling was made in Atherton v. Fowler, 91 U. S. 143, and Commissioners of Tippecanoe County v. Lucas, 93 U. S. 108.

While the judgment may dispose of the case as presented, it is impossible to anticipate its ultimate disposition. It may be volun tarily discontinued, or it may happen that the defeated party may amend his pleading by supplying some discovered defect, and go to trial upon new evidence. To determine whether, in a particular case, this may or may not be done, might involve an examination, not only of the record, but even of the evidence in the court of original jurisdiction, and lead to inquiries with regard to the actual final disposition of the case by the Supreme Court, which it might be difficult to answer. We have, therefore, always made the face of the judgment the test of its finality, and refused to inquire whether, in case of a new trial, the defeated party would stand in a position to make a better case. The plaintiffs in the case under consideration could bave secured an immediate review by this court, if the court as a part of its judgment of reversal had ordered the Circuit Court to dismiss their petition, when, under Mower v. Fletcher, they might have sued out a writ of error at once.

McComb v. Knox County Commissioners, 91 U. S. 1, is a case in point. That was a writ of error to the Court of Common Pleas of the State of Ohio. The case had been taken to the Supreme Court of the State, where the judgment of the Common Pleas was reversed for error in sustaining a demurrer to the replies, and overruling that to the answer. Upon suggestion by defendant that he might ask leave to amend his answer, the case was remanded “for further proceedings according to


law." Upon the mandate being filed, defendant did not ask leave to amend his answer, but elected to rely upon his defence already made. Thereupon the court gave judgment against him, and he sued out a writ of error from this court. We held that the judgment of the Supreme Court, being one of reversal only, was not final; that so far from putting an end to the litigation, it purposely left it open; that the law of the case upon the pleadings as they stood was settled, but ample power was left in the Common Pleas to permit the parties to make a new case by amendinent; that the final judgment was that of the Common Pleas; that “it may have been the necessary result of the decision of the question presented for its determination; but it is none the less, on that account, the act of the Common Pleas,” and was, when rendered, open to review by the Supreme Court. The writ was dismissed. A similar case is that of Great Western Telegraph Co. v. Burnham, 162 U. S. 339.

This writ of error is therefore dismissed upon the authority of Brown v. Union Bank of Florida, 4 How. 465; Pepper v. Dunlap, 5 How. 51; Tracy v. Tolcombe, 24 How. 426; Moore v. Robbins, 18 Wall. 588; St. Clair Co. v. Lovingston, 18 Wall. 628; Parcels v. Johnson, 20 Wall. 653; Baker v. White, 92 U. S. 176; Bostwick v. Brinkerhoff, 106 U. S. 3; Johnson v Keith, 117 U. S. 199.





No. 63. Submitted October 29, 1901.-Decided December 2, 1901.

In an action upon a note given to a national bank, the maker cannot set off,

or obtain credit for, usurious interest paid in cash upon the renewals of

such note, and others of which it was a consolidation. In cases arising under the second clause of Rev. Stat. sec. 5198, the person

by whom the usurious interest has been paid can only recover the same back in an action in the nature of an action of debt. The remedy given by the statute is exclusive.

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