Norrie & Johnson v. McCullough

Jackson, Chief Justice. The question made in these three cases, on two cross-bills of exception in íavo of the cases where new trials had been refused, and on an original bill of exceptions where the neAV trial had been granted is, whether the clerk or his deputy can adjourn an adjourned term of the court in the absence of the judge, where his absence has not been caused by unavoidable accident, from day to day, for two days under section 3242 of the Code. The section is codified from the act of 1799, Cobb’s Dig., p. 459, which section is as follows: “ In case of unavoidable accidents, whereby the superior court in any county shall not be held at the time appointed for holding the same, the clerk of such court shall adjourn the same from day to day, not exceeding two days; and unless the presiding judge shall order to the contrary, within the two days aforesaid, the clerk shall adjourn said court to the next term.-” The statute is very plain. It is only when an unavoidable accident prevents the court from being held that the clerk has the authority of law to adjourn the court for two days without an order from the judge, and as the record shows that no accident of the sort prevented this court from being held at the time appointed by the last 'order of ad [604] iournment by the presiding judge, the clerk’s adjournment orders were null and void, and the motions for new trials in the several cases were made, not in term, but in vacation, and with no order of consent or otherwise to make the motions in vacation. The motions were made and decided coram non judice, so far as respects a sitting in term, and equally coram non judice, so far as a sitting in vacation is relied upon, no order having been taken in term allowing the motion to be made, in vacation. So that in either view, there was no court sitting empowered to allow a motion for a new trial to be made and to pass upon it. Neither the judgment in the 50th Gá-, 481, nor that in the 61st, 182, is made in a case at all similar to this in the facts disclosed by those records and by the record here. There is no analogy at all between either of them and this case, and we are not cognizant of any opinion or intimation of this court, which has construed this statute otherwise than we now do, and which its plain language demands that we do.’ So that the judgment is reversed in the three bills of ex. ceptions, on the ground that the court was not legally in, session in term, so as to authorize it to allow or consider a motion for a new trial, nor was the judge sitting at chambers by virtue of any order in a previous term so as to authorize him to allow or entertain such a motion. Judgment reversed.