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Statement of the Case.
"Without entering into a discussion of the other questions presented by the record, we are satisfied from the facts shown that the appellants [defendants] are entitled to the use of more water than is awarded them in the decree of the court below and that said decree as well as the findings of fact should be modified and made more certain so as to settle the whole controversy between the parties; settle it so that it may be ascertained with reasonable certainty how much the court has decreed in favor of either party without a resort to further proceedings. This should be done upon the proofs taken in the case without the necessity of awarding a new trial. The respondent [plaintiff] should be entitled to the use and appropriation of all the waters flowing or to flow through or in Yogo and Neoche Creeks during the period from and including the fifteenth day of June to the first day of November in each year, except that during twenty-four hours of Monday of each week during that period the appellants should have the exclusive use of one half of the waters flowing through Yogo Creek, and that during twenty-four hours of Friday of each week during that period the appellants should have the exclusive use of one half of the water flowing through Neoche Creek for farming, grazing, stock raising and culinary purposes, and that during all such period the appellants should also have the right to use the waters of both such creeks as may be necessary for watering stock and for culinary purposes only, and that from and including the first day of November to the fifteenth day of June in each and every year the said respondent should be entitled to the use and appropriation of such waters of Yogo and Neoche Creeks as it may need for culinary and domestic purposes and for watering stock and agricultural purposes, not exceeding one half of the waters flowing through such creeks, and that during the same period last stated the appellants shall be entitled to use and appropriate such waters of Yogo and Neoche Creeks as it may need for the same purpose, not exceeding one half of the waters flowing through such creeks, and each party should be enjoined from interfering with the rights of the other under such decree."
The court entered a judgment remanding the case to the
Opinion of the Court.
said District Court with directions to modify the decree and findings therein in conformity with the foregoing opinion.
The Salina Stock Company and Elwin A. Ireland (defendants in the District Court and appellants in the said Supreme Court) thereupon appealed to this court, alleging that the said Supreme Court erred in vacating the findings of the District Court, and rendering judgment on the evidence taken at the trial below.
Mr. C. W. Bennett for appellant.
Mr. J. L. Rawlins for appellee.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
The single question presented in this record is the regularity of the action of the Supreme Court of the Territory of Utah in rendering judgment as follows:
“This cause having been heretofore argued and submitted, and the court being sufficiently advised thereon, it is now here considered, ordered and adjudged that the judgment of the District Court therein be and the same is hereby modified, and this cause is remanded back to said District Court, with directions to modify the decree and findings therein in conformity with the opinion of this court."
That portion of the opinion of the Supreme Court which was particularly directed to a modification of the decree of the District Court was in the following terms:
"Without entering into a discussion of the other questions presented by the record, we are satisfied from the facts shown that the appellants are entitled to the use of more water than is awarded them in the decree of the court below, and that the decree of the court below, as well as the findings of facts, should be modified and made more certain, so as to settle the whole controversy between the parties; settle it so that it may be ascertained with reasonable certainty how much the court has decreed in favor of either party, without a resort to further proceedings. This should be done upon the proofs
Opinion of the Court.
taken in the case without the necessity of awarding a new trial."
Whether this decree was so far final as to be the subject of an appeal to this court might be questionable. But neither of the parties have suggested such a question, and we shall assume that, reading the decree in the light of the opinion, it may be regarded, if unreversed, as a final disposition of the controversy.
We are therefore asked to reverse a final decree of the Supreme Court of the Territory of Utah, in an equity case, on a question of practice. The act of April 7, 1874, c. 80, 18 Stat. 27, provides that, on appeal from a territorial court, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certified by the court below, and transmitted to the Supreme Court, together with the transcript of the proceedings and judgment or decree. No such statement is given us in this record, nor are any of the rulings of the trial court, in the admission or rejection of evidence, complained of. But the sole contention is that it was not competent for the Supreme Court to modify the findings of fact of the court below and enter a judgment on the facts as thus modified that, if dissatisfied with the findings, the Supreme Court should have sent the cause back for a new trial. Several California cases are cited, in which it was held that when the findings are erroneous it is not the province of the Supreme Court, on appeal, to look into the evidence with a view to reform the findings, and then to enter a judgment in accordance with what the findings ought to have been, but that, in such a case, the Supreme Court will reverse the judgment and remand the cause for a new trial.
While it is true that the Code of Civil Procedure of California is in similar terms to that of Utah, it does not follow that the courts of the latter will be regulated by decisions of California courts in construing the provisions of the code.
Section 3006, vol. 2, Compiled Laws, embraced in the Utah Code of Civil Procedure, is as follows: "The court may re
Opinion of the Court.
verse, affirm or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial, or further proceedings to be had."
In the case before us the Supreme Court of Utah has practically interpreted the provision as authorizing it to modify the findings of the court below, and to make a corresponding change in the judgment, without awarding a new trial. Those modifications of the findings and judgment were favorable to the defendants in the trial court, who took the appeal to the Supreme Court of the Territory. Yet they are the parties who have appealed to us to say that, instead of amending the decree in the manner it did, the court should have reversed the judgment, and directed a new trial.
A somewhat similar question was raised in the case of Stringfellow v. Cain, 99 U. S. 610, which was likewise an appeal from the Supreme Court of Utah. There the Supreme Court of the Territory set aside the findings of the trial court, and directed a decree on the evidence, at the same time making its own findings from the evidence; and this court refused to disturb the decree of the Supreme Court, saying: "Without undertaking to decide what would be the proper practice in an ordinary civil case when the judgment is reversed, and a new trial was refused in the District Court, we are clearly of the opinion that in a suit like this, when all the evidence is before the Supreme Court that could be considered by the District Court if the case should be sent back, it is proper for the Supreme Court itself to state the facts established by the evidence, and render the judgment which ought to have been rendered by the District Court."
Gray v. Howe, 108 U. S. 12, was likewise an appeal from the Supreme Court of the Territory of Utah. There the Supreme Court on appeal had reversed the judgment of a District Court, set aside the findings of that court, and without itself making a new statement of facts in the nature of a special verdict entered a final judgment; and this court held that such record presented nothing for our examination, and that consequently the judgment of the Supreme Court of the Territory must be affirmed on appeal.
Statement of the Case.
It has been frequently held that the authority of this court on appeal from the Supreme Court of a Territory is limited to determining whether the court's findings of fact support its judgment or decree, and whether there is any error in rulings duly excepted to in the admission or rejection of evidence. San Pedro Company v. United States, 146 U. S. 120; Mammoth Mining Co. v. Salt Lake Machine Co., 151 U. S. 447, 450; Idaho & Oregon Land Co. v. Bradbury, 132 U. S. 509, 514; Haws v. Victoria Copper Mining Co., 160 U. S. 303, 312. Without denying the authority of this court to find error in the judgment of the Supreme Court of a Territory, even in passing on a question of practice, we certainly should not feel inclined to exercise such authority unless we were able to perceive that injustice had been done; and as this record presents us with no statement of the facts to enable us to determine whether the facts found were sufficient to sustain the judgment rendered, and with no exceptions taken to rulings in the admission or rejection of evidence, there is nothing here which we can examine. It follows that the judgment of the Supreme Court of the Territory of Utah must be and is
BARNITZ v. BEVERLY.
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
No. 863. Submitted April 18, 1896.- Decided May 18, 1696.
A state statute which authorizes the redemption of property sold upon foreclosure of a mortgage, where no right of redemption previously existed, or which extends the period of redemption beyond the time formerly allowed, cannot constitutionally apply to a sale under a mortgage executed before its passage.
ON November 1, 1885, George A. Kirtland executed to Martha Barnitz several promissory notes, covering a principal debt of $1500 and interest, payable semi-annually for five years, at the rate of eight per cent per annum, and after ma