Argument for Defendant in Error.

dismissing the appeal was correct and ought not to be reversed. The case of Gifford v. Republican, &c., Railroad is not referred to by the plaintiff in error, but it seems to be the part of frankness on our part to call it to the attention of this court.

But upon the authority of that case, however, as well as upon principle, we further submit that the order of the court below must be affirmed for other jurisdictional defects specified in the defendant's motion. The statute referred to does not prescribe the method of perfecting an appeal from the award of commissioners. The method of perfecting such an appeal so as to invest the appellate court with jurisdiction of the proceedings must, therefore, be determined by settled and sanctioned practice, and by the legal necessities of such a proceeding. It is obvious that the appellate court must have before it a record, complete for all jurisdictional purposes, of the matters which it is called upon to review. In the present case such a record could not consist of anything less than a transcript from the county judge of the entire condemnation proceedings, beginning with the petition of the defendant company for the appointment of commissioners (the jurisdictional basis of the entire proceeding) and concluding with the award of the commissioners. It would be obvious that the jurisdiction to review could not rest on anything short of this, even had such requirements never been judicially expressed. But the record transmitted to the District Court of Cass County, and thence to the Circuit Court below, was thus fatally defective because (and for other reasons) it did not contain a copy of any petition of the railway company for the appointment of commissioners. The jurisdiction of the appellate court was derivative and could not exist upon a record which failed to disclose the original jurisdiction.

The plaintiff in error filed a motion for a rehearing of the motion to dismiss his appeal, and in support of his application he filed what he denominated "a full and complete transcript of the proceedings had in condemnation herein." This "transcript" was certified to be such by the county judge of Cass County on the 29th of September, 1883-nearly two years

Opinion of the Court.

after the assessment and appeal. This last "transcript" cannot be here considered, because, (1) the motion for a rehearing and all proceedings connected with it are proceedings not properly part of the record in this court. (2) This "transcript" was never filed in the District Court of Cass County, and could in no event be considered unless there filed within sixty days after the assessment. Gifford v. Republican Valley Railroad, supra.

The unauthorized certificate of the county judge to a summary of the proceedings cannot be substituted for the actual record of the proceedings, and such certificate cannot be here considered as part of this record. Fisher v. Cockerell, 5 Pet.

248.

MR. JUSTICE MILLER, after stating the case as reported above, delivered the opinion of the court.

The defendant in error insists that the case should be dismissed here for want of an assignment of errors. In regard to this it is sufficient to say that it would be difficult to formulate a more precise and specific assignment of error than that contained in the foregoing extract from the brief of the plaintiff.

The next point presented is, that the ruling of the court in this case, upon the question of the dismissal of the appeal, is not presented by any bill of exceptions, and that there is nothing in the record on which this court can review that decision. But the determination of this subject is the final judgment of the court. This is so in any sense in which it can be looked at. The order to dismiss is in the following

terms:

"This cause coming on to be heard this 20th day of December, 1883, on the motion filed by the defendant to dismiss the appeal herein from the assessment of damages made by the commissioners appointed by the county court of Cass County, Nebraska, on the ground that said appeal was not taken within sixty days after the assessment of damages to said real estate by said commissioners, and for other reasons

Opinion of the Court.

contained in said motion on file, and on argument of counsel and on consideration thereof by the court, the court doth here find that said appeal was not taken within sixty days from the date of the assessment of damage made by such commissioners of the land in controversy, and the court doth sustain said motion to dismiss such appeal. It is ordered by the court here that said appeal be, and the same is hereby, dismissed, each party to pay its own costs."

If it be true that the appeal from the Cass County court to the District Court of that county was not taken in time, that is, within the sixty days referred to in this judgment, there is an end of the plaintiff's case in any court whatever. The Circuit Court for the District of Nebraska, assuming to come into the place of the District Court of Cass County, and exercising the powers which that court would have exercised if the case had not been removed, holds that no valid appeal was taken, and for that reason dismissed the case. If such finding be correct and it remains as a valid judgment it puts an end to the plaintiff's claim; it can nowhere be considered any further, and it is final upon the questions involved in the

case.

As to the proposition that it cannot be reviewed here for want of a bill of exceptions, that is equally untenable. A judgment of a court appealed from is never incorporated into a bill of exceptions. It is always a part of the record of the case, and, like the plea and the verdict, it needs no bill of exceptions, but is simply to be transcribed as a part of the record. In this case it presents for itself the point or matter on which the court acted. It is there distinctly stated that the case was dismissed because the appeal was not taken within sixty days from the date of the assessment of damages made by the commissioners. Now, if the facts on which this decision was made are to be found in what may be properly called the record of the case before the judge when he decided it, as it is here presented to us, then there was no need of any bill of exceptions in the matter.

Whatever there was on that subject to guide the action of the court on the motion to dismiss the appeal was found in

Opinion of the Court.

the transcript as it came from the state court and was filed in the Circuit Court of the United States. If there was enough in that transcript to present the question in this case, then we must review it; for we take it to be a necessary rule in such cases that the transcript from the state court becomes a part of the record of the case in the Federal court. There is no mode by which that transcript, or any of its contents, can be abstracted and made a part of a bill of exceptions to be signed by the Federal judge. He can know nothing about what takes place in the state court, personally, and cannot therefore certify to it. It comes to him as certified by the court in which the proceedings were had. It is itself the foundation on which he is to act in the future proceedings in the case. is already a record of another court transcribed and certified to his court, and in any writ of error from the Supreme Court of the United States that transcript from the state court necessarily becomes a part of the record.

It

As regards the main point, that the appeal was not taken within sixty days, this transcript, which is said to be imperfect, sufficiently shows that the commissioners were appointed; that they returned the award and assessment of damages into the county court on the first day of December, 1881, allowing to Clinton for damages to his property, known as as the "Mill Reserve," the sum of $850, and that on January 28, 1882, Clinton filed a notice of appeal from this award. Although the time is pretty close, it is very obvious — these things being matters of record that Clinton intended to appeal within the sixty days allowed by the statute, and that he did appeal within sixty days after the commissioners filed the award, and thereby made it public.

We think the circuit judge, in dismissing this appeal because it was hot taken in time, erred in holding that the assessment of damages must be considered as having been made on the 23d of November, at which time they went upon the ground to view it. There is no reason to believe that on that day they made their assessment. There was no assessment of damages, however much it may have been talked about, until they concluded upon and signed a final report upon that sub

Opinion of the Court.

ject, and it is not to be believed that the Nebraska statute, limiting the right of appeal from the award of such commissioners to sixty days, intended that period should commence to run at any time prior to the final action of the board in presenting their report to the county court. This point seems to have been so decided by the Supreme Court of Nebraska in the case of Gifford v. The Republican Valley and Kansas Railroad, 20 Neb. 538. On this point, therefore, the judgment of the Circuit Court, which is here for review, was evidently errone

ous.

Another point taken by counsel for defendant in error is, that the requirements specified by the Supreme Court of Nebraska have not been complied with, that court having, in the case just referred to, decided that "the essentially requisite proceeding to perfect an appeal from the award of commissioners, in a case of this kind, and to give the District Court jurisdiction of the same, is to file in the said court, or in the office of the clerk thereof, a certified transcript from the county judge of the condemnation proceedings, from the original application to said county judge for the appointment of commissioners to the report of such commissioners in the respective case, both inclusive."

It is urged that the transcript filed in the District Court in this case was imperfect and defective, among other reasons, because it did not contain a copy of any petition of the railway company for the appointment of commissioners. We are of opinion, however, that what was filed in the District Court was sufficient to give that court jurisdiction to proceed further in the case. It contained the order appointing the commissioners, the swearing of them to perform their duties, the report which they made in the matter, the award of $850 damages upon Clinton's property and the taking of the appeal by him, and the service of notice of that appeal on the parties. This is sufficient, at least, to show to the District Court that a case had arisen which the statute intended might be brought before that court on appeal. If it had been suggested by either party that this transcript was imperfect or defective because it omitted some paper, or order, or matter in the county