# Behn Meyer Company v. Campbell Go Tauco/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
205 U.S. 403
Behn Meyer Company v. Campbell Go Tauco
Argued: March 7, 1907. --- Decided: April 8, 1907
The defendant first appealed from the judgment of the supreme court of the Philippine Islands, which had been rendered against them and the appeal was dismissed. 200 U.S. 611, 50 L. ed. 619, 26 Sup. Ct. Rep. 753. The reason, so plain that it seemed not to require statement, was that errors alleged to have been committed in an action at law can be reviewed here only by writ of error. This, in the absence of modification by statute, is the rule in respect to all courts whose records are brought here for review. Walker v. Dreville, 12 Wall. 440, 20 L. ed. 429; United States v. Hailey, 118 U.S. 233, 30 L. ed. 173, 6 Sup. Ct. Rep. 1049; Deland v. Platte County, 155 U.S. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82; Comstock v. Eagleton, 196 U.S. 99, 49 L. ed. 402, 25 Sup. Ct. Rep. 210.
The defendants, having failed in their appeal, have now brought a writ of error and ask this court to review the facts to the same extent that they would be reviewed on appeal. But this overlooks the vital distinction between appeals and writs of error which has always been observed by this court, and recognized in legislation. An appeal brings up questions of fact as well as of law, but upon a writ of error only questions of law apparent on the record can be considered, and there can be no inquiry whether there was error in dealing with questions of fact. Wiscart v. Dauchy, 3 Dall. 321, 1 L. ed. 619; Generes v. Campbell, 11 Wall. 193, 20 L. ed. 110; United States v. Dawson, 101 U.S. 569, 25 L. ed. 791; England v. Gebhardt, 112 U.S. 502, 28 L. ed. 811, 5 Sup. Ct. Rep. 287; Martinton v. Fairbanks, 112 U.S. 670, 28 L. ed. 862, 5 Sup. St. Rep. 301; Dower v. Richards, 151 U.S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452 (where the cases are reviewed by Mr. Justice Gray); Elliott v. Toeppner, 187 U.S. 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133; Rev. Stat. § 1011, U.S.C.omp. Stat. 1901, p. 715.
The assignment of errors in the case at bar does not allege any errors of law, but deals exclusively with questions of fact. There are six assignments. The first, second, fifth, and sixth assignments severally allege that the supreme court erred in rendering the judgment which it did and in reversing the judgment of the court of first instance. The third assignment specifically recites that 'the supreme court of the Philippine Islands erred in finding as matters of fact the following:' Then come eight specifications of errors in such findings. It is, however, argued by counsel that the fourth assignment of errors in effect alleges an error in law. That assignment is as follows: lows: 'The supreme court of the Philiphine Islands erred in not finding that the evidence in the case was not sufficient to justify the court reversing the judgment of the court of first instance.'
The Philippine Code of Procedure (Public Laws of Philippine Commission, act 190, 1901), prescribes in chapter 22 the practice of the supreme court in reviewing the judgments of courts of first instance. It confines the review to questions of law, with certain exceptions, one of which is as follows:
'If the excepting party filed a motion in the court of first instance for a new trial, upon the ground that the findings of fact were plainly and manifestly against the weight of evidence, and the judge overruled said motion, and due exception was taken to his overruling the same, the supreme court may review the evidence and make such findings upon the facts and render such final judgment as justice and equity require. But, if the supreme court shall be of the opinion that the exception is frivolous and not made in good faith, it may impose double or treble additional costs upon the excepting party, and may order them to be paid by the counsel presecuting the bill of exceptions, if, in its opinion, justice so requires.' § 497, subdiv. 3.
The supreme court, in the case at bar, acted upon the authority conferred by this subdivision. It is said that the supreme court can review the evidence taken in the court of first instance and thereby arrive at a different conclusion of facts from that found by the trial court only in the case that 'the findings of fact were plainly and manifestly against the weight of evidence.' It is therefore urged that whether the court erred in setting aside the conclusions of the lower court as plainly and manifestly against the weight of evidence is a question of law which may be brought here by writ of error. It was held in De la Rama v. De la Rama, 201 U.S. 303, 50 L. ed. 765, 26 Sup. Ct. Rep. 485, that, upon an appeal, this court will consider whether a reversal by the supreme court of the findings of the court of first instance was justified on the ground that the findings below were plainly and manifestly against the weight of evidence, and, upon being satisfied that the action of the supreme court was not warranted, on that ground would reverse it. But this case was one of appeal, and the vital distinction between an appeal and a writ of error has already been shown. The principle acted upon in that case is not applicable to writs of error. The fourth assignment of error, therefore, raises no question of law.
The case would stop here were it not for the fact that the defendants in their brief and in the oral argument in their behalf go beyond the assignment of errors and set up three alleged errors of law not contained in them.
'(1) In holding as a matter of law that the fact of taking possession of said dwelling house was an acknowledgment by the plaintiffs in error that it was constructed substantially as required by the said contract.
'(2) In holding as a matter of law that the plaintiffs in error were not entitled to recover their overpayments for earth and sand because no mutual mistake was shown in the premises.
'(3) In rendering judgment for a sum in Mexican currency instead of in Philippine pesos.'
It is provided in the act giving this court jurisdiction to review the judgments of the supreme court of the Philippine Islands that they may be reviewed here 'in the same manner, under the same regulations, and by the same procedure, as far as applicable, as
T. R. Barnett, Judge. courts of the United States.' In such cases alleged errors not stated in the assignment of errors filed with the petition for the writ have sometimes been considered. The limits of this practice are accurately stated in the thirty-fifth rule of this court. There it is said that if errors are not assigned with the petition for the writ they will be disregarded, except that the court at its option may notice a plain error not thus assigned.
But we find no such plain error in the opinion of the supreme court as warrants us in reversing its judgment. The findings of fact made by that court support and require the judgment which it rendered. We do not think it necessary or desirable to select from an opinion, which was engaged with a discussion of evidence and the inferences which might properly be drawn from it, statements of law and subject them to minute scrutiny, where, on the whole, it is clear that the facts found by the court justify the judgment which it rendered. Therefore we do not consider any questions except those set forth in the assignment of errors, and, deeming that they allege no errors in law, we affirm the judgment.
Affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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