We’ve all heard the expression, “For the record…”

In law, the record is something very specific. According to Black’s Law Dictionary, the record is “a written memorial of all the acts and proceedings in an action or suit…[or] the official and authentic history of the cause…[including] entries of each successive step in the proceedings, chronicling the various acts of the parties and of the court.”¹

In other words, the record is the formal, written account of a case.

The record is pretty important. We need a record so the parties and judges are working with the same information, so future litigants and courts can refer to the case, and so the history of a case is transparent and clear.

Today’s case, Hills v. Ross I, poses a fascinating question — what happens when the record of a case…disappears?

---

This is a civil procedure case coming out of Georgia.

The issue is whether the Supreme Court can hear a case on appeal if the lower court fails to include a statement of facts in the record when they were supposed to.

This case went to the Ellsworth Court during the Washington Presidency. The Court ultimately ruled in favor of Ross.

See the Court’s opinion here.

---

It’s like this.

When a party doesn’t like how the judge ruled in her case, she can ask a higher court to take another look at the case. We call that an appeal.

In order for the higher court to review a case on appeal, the higher court needs to refer to the record that was developed as the case progressed through the lower court.

This makes sense, right? Why would a higher court start all over when that court can just look at what happened below? The record, you see, is essential. Without it, the higher court, or appellate court, doesn’t have an accurate account of what happened in the lower court. It’s like asking a referee to review a play to determine whether a player stepped out-of-bounds…without having any footage to review.

So when Ebenezer Hills and his business partners lost their admiralty case in Georgia’s Circuit Court and then appealed to the Supreme Court, the Supreme Court was puzzled, as the record was missing a statement of facts, the section which lays out the facts which led to the dispute.²

It appears the Court could see the lower court’s decision, giving the win to Walter Ross, a Brit, but the Court could not see the underlying facts of the case which persuaded Georgia’s Circuit Court to rule in Ross’s favor.³

This posed a practical problem because, like we’ve just talked about, a case without a record is an unknowable black hole. The incomplete record was such a serious problem that both sides agreed “it would be impossible [for the Supreme Court] to obtain a fair view of the proceedings of the circuit court in this cause.”⁴

This also posed a legal problem because the Judiciary Act of 1789 requires the record in admiralty cases to include a statement of facts.⁵

The record showed that witnesses gave testimony in the circuit court, but none of that testimony was written down!⁶ (Back in 1796, not every word spoken in the court was written down, but in federal court, testimony given in admiralty cases was supposed to be.⁷)

The Arguments

Hills: Hills, the petitioner, argues the circuit court’s decision should be reversed because the court failed to keep a complete record. Hills insists “omission of a statement of the case, vitiated the whole record.”⁸

To support his position, he basically lays out the history of why the Judiciary Act required the record to include a statement of facts in admiralty cases. He describes the rule as an “innovat[ion]” and explains that “[t]he law…wisely ordered that the facts on which the decree was founded…should be shown by a statement, which…should enable the court to determine whether the inferences of law, drawn from those facts by the inferior court, were just or erroneous.”⁹

In other words, Hills says a higher court judge requires the facts of a case to appear in the record so he can evaluate whether the lower court judge did a good job applying the law to the facts.

Accordingly, because Georgia’s Circuit Court failed to preserve the facts of the case in the record (lather those facts with salty, salty brine), the Circuit Court’s judgment against him should be reversed.

Ross: Ross, on the other hand, argues he was satisfied with the circuit court’s decision. Therefore, he argues, “It was not [his] business to assist the plaintiffs in perfecting their record, so as to enable them to bring it properly before an appellate court.”¹⁰

Cold.

Ross glibly offers to provide facts to the Supreme Court from his notes taken in the lower court, but recognizes that the Court can’t really use those informal and unofficial notes to consider the case.¹¹ Talk about adding salt to the wound.

Ross also argues he shouldn’t suffer because of the lower court’s error.¹²

He leaves the Court with one glaring question: How can Hills expect the Supreme Court to reverse the Circuit Court’s decision if the Supreme Court doesn’t know the underlying facts of the case?¹³

Good question. Let’s see what the Court said.

The Decision

The Court issued its decision per curiam, meaning the the Court issued its decision in the name of the institution of the Court, rather than attributing authorship of the opinion to any one Justice.¹⁴ In this case, the Court’s per curiam decision was unanimous, meaning each Justice who participated in the decision agreed with one another.¹⁵

Ultimately, the Court ruled that the absence of a statement of facts was not enough of a reason to reverse the Georgia Circuit Court’s decision.¹⁶

However, rather than throwing the case out and telling Hills to take a hike, the Court recommended that the parties come to an agreement to somehow get the facts before the Justices.¹⁷

In the end, the parties agreed to gather evidence once again, and to bring their factual findings to the Court in the spring so the Court could have a full understanding of the matter.¹⁸

So, Hills was still in the game, and Ross was still in jeopardy of losing his case. We’ll see how this case wraps up later in 1796, when the Court hears Hills II.

Final Reflections

Georgia messed up. That doesn’t mean, though, that Hills should suffer because of it. If the guy has a right to appeal, he should have his appeal. At the same time, Ross shouldn’t lose just because Georgia messed up.

I think the Court did a prudent thing, allowing the parties to reintroduce facts to complete the record. The method is definitely imperfect, and there may be gaps in the facts compared to what was discovered in the court below, but I think this is a fair compromise, considering Georgia’s mistake.

Hills shouldn’t lose his ability to have his case heard by a higher court just because Georgia didn’t have its act together.

To be clear, I do see that this sucks for Ross, who has to gather his evidence again and present the facts anew to the Court. But it sucks for Hills too. Both parties have to expend money, time, and energy rehashing the facts. If Georgia never made a mistake, the Court would just look to the facts in the record decide the case. So, the Court’s effort to reconstruct the facts, I think, is the right move, because it’s an effort to get the case back on track, as if no mistake was made in the first place.

The only potential injustice that worries me here is if there are critical witnesses who Ross can no longer reach or produce, or other pieces of evidence he can no longer obtain, resulting in an underbaking of the facts that were present in the lower court. If Ross loses because a key witness is unreachable…that would suck.

However this shakes out, I think it’s clear that the fault for this whole debacle lies with Georgia’s Circuit Court. Get it together, Georgia!

You Be The Judge

What do you think of this case? Leave a comment!

Studying this case for class? I offer 1-on-1, virtual law school tutoring. Learn more here.

Here’s a Bluebook cite for ya – Johnathan J. Azar, What Do You Do When The Record of the Case…Disappears: Hills v. Ross I (1796) (September 17, 2026)

FOOTNOTES

1. Black’s Law Dictionary 999 (2d ed. 1910) ↩︎
2. Hill et al. v. Ross, 3 U.S. (3 Dall.) 184, 184 (1796) ↩︎
3. Id. ↩︎
4. Id. at 185 ↩︎
5. The Judiciary Act of 1789 ↩︎
6. Hill et al. v. Ross, 3 U.S. (3 Dall.) 184, 184 (1796) ↩︎
7. The Judiciary Act of 1789 ↩︎
8. Hill et al. v. Ross, 3 U.S. (3 Dall.) 184, 185 (1796) ↩︎
9. Id. at 186 ↩︎
10. Id. at 185 ↩︎
11. Id. at 187 ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. ↩︎

Disclaimer: All content on Lex Sans Latin is provided for educational and informational purposes only, and does not constitute legal advice. Nothing on this site creates an attorney–client relationship. If you need legal advice, please consult an attorney.

This blog may include quotations or excerpts from judicial opinions, statutes, scholarly articles, books, and other primary or secondary sources. Such materials are used for purposes of commentary, criticism, teaching, scholarship, and research in accordance with the fair use doctrine under U.S. copyright law (17 U.S.C. § 107). All cited materials are attributed to their original sources to the extent reasonably possible.

Any tutoring or instructional services offered are educational in nature and are not a substitute for legal advice or legal representation.