Foster v. Redfield

The opinion of the court was delivered by Barrett, J. Though no member of the court has any doubt as to the result which the law requires in this case, what is shown as constituting the case renders it so strange that such a proceeding should have been instituted and carried on to solemn argument by learned and grave counsel, as to “ give us pause ” as to what consideration and what treatment the casé should receive by the court. It has long been familiar as established law, and constantly acted on, that the final entry, made by direction of the court on the docket of a given term of court, is the conclusive evidence of the disposition made of the case for that term, and that, till the definitive adjournment of the court for such term, what such final entry shall be is within the control of the court; and that the direction for that final entry constitutes the disposing of the case for that term by the court. What judgment or order the court [290] will render or make in any cause in a given term of the court, is within the control of the court until such term shall have finally ceased by adjournment without day. Unless there be a special order for a judgment before the term closes, no judgment is regarded as rendéred till the day that closes the term. And when such special order has been made, it is within the province and prerogative of the court, if it sees fit, and on its own motion, to change or vacate that order at any time within the term, unless it has been acted on, and rights and interests affected by being thus acted on. And the mode of calling in question such action of the court is by taking exception to the judgment or order that disposes of the case, or by some proceeding to get the error corrected. Mandamus is not a remedy against an erroneous order or judgment. It is only adapted to the compelling of something to be done in consequence of the order or judgment made or rendered, which it is the duty of the officer of the law to do. It presupposes that an order has been made, or a judgment rendered. This disposes of -the case, so far as it rests on the assumption that the court had rendered a judgment in the case, but had neglected or refused to have it entered upon the docket. Eor, as before said, the entry directed by the court shows the action of the court constituting the disposition of the case at and for the term. Unless that entry shows a definite decision, then no final judgment has been rendered, and the cause continued to be pending in the court. If the petition be regarded as asking, in the alternative, for a writ of procedendo, the case as disclosed shows no ground nor occasion for such writ. It is not shown that the court has neglected, or is in the process of neglecting, or is likely to neglect, its duty in the matter of rendering final judgment in the case. Without spending time in discourse as to what might be the duty of the court in an ordinary suit at law between parties, it will fully serve present purposes to remark that, not alone are the personal interests of the parties to a divorce suit involved, but the interest of children, and the interests of the public, as the public stand related to, and affected by, the institution of marriage — an institution more vital than any other to society and its [291] well being — resulting, as it does, in the fact, and relations, and duties of parentage ; involving, as it does, the current support and the progressive development and education of children in mind and morals, in sentiments and conduct, and manners. When considered in these respects only in its secular complexion, it is obvious that a proceeding in court for the severing of the marriage bond, is to be regarded by the court as requiring much to be considered that does not appertain to an ordinary suit at law. The court is charged with a duty to the public, and to the children ; and so far as my own experience has gone, and so far as I know of the views and action of other judges, that duty to the public and to the children has constituted an important factor in determining the course to be taken with the given case. After the evidence has all been given, upon which the action of the court was asked, I have, in several cases, ordered a continuance to the next term, and that the other party, or certain persons, should then be called to testify, for the information and satisfaction of the court as to certain features of the case. In ex parte txials, and also in contested cases, I am accustomed to examine witnesses sharply and thoroughly, to elicit as fully as possible all the facts and circumstances, not merely as bearing on the alleged cause, but as bearing on the intei’ests of the children and of the public, to be affected by the result of the proceeding. I have known, in cases in which the statute does not make the- parties witnesses, a continuance to be ordered by the court, where the libellee was not appearing, and such libellee ordered to appear and submit to examination by the court. Such a course is often the only means the court has to protect itself from being made the instrument of a fraud upon the law, in collusive cases instituted by some members of the Bar, who are sworn not to “ do any falsehood in court, nor consent that any be done, and if they know of any, they will give knowledge thereof to the judges or some of them, that the same may be reformed.” And in spite of this means, we often find ourselves victimized by the impositions of certain exceptional lawyers, so called. A wider range of illustration is not necessary in order to show how divorce cases are regarded, as war [292] ranting and requiring a consideration and handling by courts, differing in that respect from ordinary suits at law. We assume to be true, the answer of the respondents, as to the views and reasons upon which the case was continued; and we regard such continuance as being within the province of the court, and in the exercise of a lawful and judicious discretion. The hope that the parties might become reconciled, and continue to live together as husband and wife, and as father and mother of the children — an event of such moment to the children, an event of such moment to themselves as the parents of the children — would seem to justify amply, if not to demand, the continuance, in the exercise of any discretion, judicial or humane, that should not be subjugated by the skeleton hand of heartless, not to say senseless, technicality. There is another and decisive ground and reason for denying the writ. This court, as now constituted, may not be counted upon for help towards enforcing action of the County Court in behalf of a party who has absconded from the realm for the purpose of defying the jurisdiction and the orders of the judicial authorities of the state, in the very matters in reference to which he is asking the action of this court in his own favor. If he makes himself an alien, in enmity to the jurisdiction and judicial authority of the state in reference to a matter whereof that authority had jurisdiction, as well as of himself, the character of alien enemy will adhere to him when he asks of this court help towards rendering his enmity successful. We commend to any member of the Bar an interested consideration of the posture in which he places himself, when he avows that the departure of his client from the realm was by his professional advice in the pending cause. Petition dismissed with costs.