Donnell v. Hamilton

A motion is also made in this court by appellant to vacate and annul said decree of this court, of June 12th, 1879. This presents the question, whether this court can set aside its own judgment and decree, after adjournment of the term at which it was rendered. We think it can not do so, unless the judgment or decree which is sought to be set aside is void on its face. It is not void on its face. It is duly entered as the judgment of the Supreme Court, and the evident purpose of the parties, and the effect of the written agreement entered into by them, were, that it should be so entered. If for no other reason, it is conclusive and binding on the parties, as an agreed judgment. — Bigelow on Estoppel, 3d ed., 22; Van Dyke v. State, 22 Ala. 57; Curtis et al. v. Gaines, 46 Ala. 455; Ex parte Madison Turnpike Co., 62 Ala. 93; 2 Brick. Dig. 141, § 150. Aside from the fact that the judgment is regular on its face, and duly entered of record, when looking at all the facts connected with its rendition, it seems to us that it is conclusive on the appellant. It is not denied that the Supreme Court had [613] jurisdiction both of the subject-matter involved, and of the parties. But it is insisted that the decision is not that of the court, because only one of the judges of that court, and Mr. Semple, who was not a member of the court, exercised judicial mind in its determination. It is true that, if two of the judges of the Supreme Court are disqualified from sitting in a cause, the remaining judge can not, without consent of the parties, proceed alone and render a valid judgment in the cause. But the parties may waive the disqualification of the other judges (Code, § 540), or they may consent for the single qualified judge to decide the cause, as was done in the case of Bullard and Wife v. Lambert, 40 Ala. 204, and as it seems was done in this very case on the second appeal to the Supreme Court. Freeman on Judgments, 3d ed., § 147 ; Walker v. Rogan, 1 Wis. 597. If, then, it was competent for the parties to have submitted the cause to Judge Manning alone, and if his judgment would have bound them, we can not see that the fact that Mr. Elmore and Mr. Semple, who were learned and experienced attorneys of the court, sat with Judge Manning, and counselled with him about the case, rendered it any the less valid; and especially so, when these outside parties were called into the case, at the instance and for the convenience of the parties themselves, and their counsel and co-operation was accepted by Judge Manning, and permitted by him and the other members of the court, purely as matter of courtesy to the parties. — Ala. & Fla. R. R. Co. v. Burkett, 42 Ala. 83. Mr. Semple was certainly, pro hac vice, a defacto judge of the Supreme Court. — State v. Carroll, 9 Amer. Rep. 429. Suppose none of the judges had been disqualified, and the parties had presented to the court, and had entered up as the judgment of the court, what they had themselves agreed upon as the judgment, or an award which had been made for them by outside parties, not judges, nor even attorneys, but which they had consented should be entered as the judgment of the court; can it be that one of the parties could afterwards come into the court, and have such judgment set aside as void, because it was not in fact the independent judgment of the court ? Such conduct would be trifling with the court, and in direct conflict with that salutary principle upon which the doctrine of estoppel rests. The appellant must be held to be estopped from disputing the validity of the judgment in this case. We can not see that there is any hardship in this; for the decision was made by those who were selected by the parties for the very purpose, and, on this motion, we can indulge only the presumption that the decree so rendered by them was just and correct. But, if it was otherwise, appellant must remember [614] that such result was produced by her own voluntary act; without such consent on her .part (for it is not denied that her solicitor had authority to bind her in the premises), it would not, and could not have been brought about. We think it is immaterial that the decision was made by Judge Manning and Mr. Semple after the death of Mr. Elmore. The written agreement provided, that a “ decision of a majority of them shall have the same force and effect as the decision of the Supreme Court.” It was the decision of a majority of them, and it is useless to speculate as to what might have been the effect of Mr. Elmore had survived. The motion is denied.