Faulconer v. Warner

The opinion of the court was delivered by Hoyt, J. — The statement of facts to support the appeal in this case was settled by the judge who tried the same after he had gone out of office, and his successor had assumed the duties thereof. For this, among other reasons, respondents move the court to strike such statement, and affirm the judgment of the court below. Our statute in relation to this matter provides that such statement shall be settled by the court or judge who tried the cause. Hoes this provision authorize the settlement of such statement by a private individual simply because at one time he was the court or judge who tried the cause? I think not. That the settlement of such statement is the exercise of a purely judicial function is conceded, but it is contended on the part of appellants that the language of the statute is broad enough to confer upon such private person such powers, their theory being that, by virtue of such statute, it must be held that the legislature intended that so much of the judicial power of the judge as was necessary for such purpose should be retained by him after he went out of office. I can see nothing in the language used by the legislature to warrant such a contention. The words “court or judge” cannot be held without too strained an effort to mean not only what they say, “the court or judge,” but also the person who was the court or judge on a certain day long past. In the absence of a statute expressly or by necessary intendment providing for the exercise of such powers by a judge after he had gone out of office, I am of the opinion that it would be [527] judicial legislation to hold that he had any such power. Appellants urge the hardship that must ensue from such a construction of our statute. I do not now decide that, • under the circumstances of this case, there was no method provided by which such statement could have been properly settled; but even if this were so, and I should be of the opinion that there had been a failure of proper legislation upon that subject, that fact would not warrant this court in making a legislature of itself, and supplying the deficiency. It is true that, in the cases cited by appellants from the states of Wisconsin, Connecticut and Nebraska, the courts seem to have made such decisions as would warrant the contention in this case; but I am not satisfied with the reasoning of such cases. Besides, most of those decisions were put upon the express ground of long continued usage in the states where the decisions were rendered. The courts of Indiana, and other states not necessary to mention, have taken the other position, and the reasoning therein contained seems to me incontrovertible,, See Smith v. Baugh , 32 Ind. 163; Ketcham v. Hill, 42 Ind. 64. When a judge goes out of office, he can retain no judicial functions, excepting such as it is specially provided by statute that he shall retain, and, under our statute, his power to settle a statement of facts is not so retained. Several other reasons were assigned by respondents why this statement should be stricken, but the conclusion to which we have come as to this principal one makes a decision thereon unnecessary. The motion to strike must be granted, and, as that leaves nothing upon which the appeal can stand, the judgment of the court below will be affirmed. Scott, Dunbar, and Stiles, JJ., concur.