Nuckolls v. Irwin

Ceotjnse, J. A glance at this record raised no doubt in my mind that this appeal must be dismissed. The Court, however, not being unanimous in this view, and the motion being given the additional importance of a full day’s argument by able counsel in supjiort of the appeal, it is proper that the views of the majority be briefly stated. No question is made but that the District Court had jurisdiction of the persons and subject-matter involved in this action. The issues being complete, the trial of the cause came regularly on at the August term of that Court in the year 1868, and was submitted and taken under advisement by Justice Lake. Otoe County is one of the counties of the first judicial district, to which Chief Justice Mason is assigned to hold terms of the District Court. What brought Justice Lake from his district (the second) into Otoe County, we will not stop to inquire. The statute permits district judges to interchange and hold each other’s courts (sect. 16, page 50, R. S.) ; and we will presume he was rightfully there. The record showing Justice Lake in possession of the case, we find, that at the March term, 1869, an entry was made on the journal of the same Court, reciting the trial, submission of the cause, and the taking of the same under advisement by the Court by consent of counsel, the finding or decision of the Court, and its judgment thereon in favor of the defendant. With so complete a record, showing a cause over which the Court had full jurisdiction, — its trial, submission, finding, — 64 — and judgment, — we would suppose the case concluded in that Court; and are not a little surprised to find the further entry appearing on the record, made more than a year and a half subsequently, several terms of the same Court having intervened. That entry itself is a little singular. It was made against the protest of the defendants. The decision was favorable to them ; and they were satisfied with one judgment in the case, or at least with the one they supposed they had. This entry itself betrays a suspicion at least, on the part of the plaintiffs’ counsel, that what already appeared on the records might be mistaken for a judgment; or why this unnecessary recital, that “ now, on this day, the fact that no judgment had been entered by the Court in this cause having been duly called to the attention of the Court, in open Court, by the above-named plaintiffs ” ? The entry shows, further, that the Court, treating the' previous entry as a “ finding,” pronounces its judgment' accordingly. And, in point of form, I must confess it is no improvement as a judgment upon that which is denominated a “ finding.” A judgment is the determination or sentence of the law. The apt language is, “ it is considered by the Court,” — “ consideratum est per curiam.” 3 Black. Com., 396. This appears in both. We look in vain for any explanation for this peculiar proceeding, unless we receive the suggestion that was made* at the argument, that an attempt was made to take an appeal from the judgment of March, 1869, which was attended with some fatal irregularity; and the idea of having a judgment entered anew was conceived. A reference to the Supreme-Court calendar for the last July term shows a cause of the same title of this here, but which was withdrawn. Taking into consideration this circumstance, with the fact that an appeal was taken from this last entry within a few days after its — 65 — appearance on the journal of the District Court, it is difficult to resist the conclusion that this is an attempt to do that by indirection which could not be done directly. There is no power in either the District or Supreme Court to enlarge the time for taking appeals; and any effort to attain the same end by an evasion of the provisions of the statute is equally unlawful. Humphreys v. Chamberlin, 11 N. Y., 274. But that is not a question legitimately arising on the record: so I will pass to a brief notice of the ingenious arguments advanced by counsel in support of this appeal; and I may say of them, that while very ably advanced, resting largely on ingenuity, they lead to as many different conclusions as there are advocates urging them. If I fully comprehend counsel, one contends that judgments may be multiplied at pleasure; and that the last entered may be appealed from, especially when the Court assumes to declare there is no judgment, as is done here : while the other insists that there was no authority in the Court of March, 1869, to render judgment; that, if there was no authority to render judgment, there was none to give a decision; and that, therefore, the judgment sought to be based upon it in October, 1870, is equally worthless; and that the case must be returned to the Court below for judgment : while the Court at the October term, 1870, seems to have concluded that there was just enough authority in the Court of March, 1869, to render a decision, but not a judgment, in the case. As to the first of these positions, it was unnecessary to argue at length, or cite authority in support of the general proposition, that a judgment of a court of competent authority must be recognized till set aside or reversed. But the counsel for the other side invoke this same principle, and claim that the judgment of March, 1869, has never been set aside, or disturbed in any way: — 66 — so we are not to settle the force of the judgments. But, as there can be but one final judgment in a cause, we have the entirely different question, Which is the judgment in the case ? That seems to be not a very difficult question. When a judgment is once entered of record,'"/ it must stand as the judgment until it is vacated, modified, or disposed of by some means provided by law: entering additional judgment entries is not one of them. J A case regularly brought into Court is presumed to be attended at regular terms of Court by the attorneys having it in charge; and all proceedings of the Court in reference to them, in the absence of fraud, will be binding on the parties, whether present or not. But, when judgment is entered, they may cease their attention. The further proceedings in the case, by petitions to vacate or modify judgment, or on error to this Court, must be on proper notice provided by statute. Chaps. 1 & 2, Tit. 16, Code. If to enter additional judgments in the same cause is a regular proceeding, I see no necessity for notice; and, when a party once obtains judgment, he must ever after stand guard over it, lest some enterprising attorney should, in after-years, enter / another judgment, so as to bring the party into an apj pellate court. This position will not stand. We will go to the next, — that there was no authority in the Court of March, 1869, to render judgment in the case. This is declared on the strength of the note of the clerk, introducing into the record sent here the words, “ Hon. O. P. Mason presiding,” just before the entry of March, 1869. This is made the text upon which are based many interesting speculations, — as to the appearance of a court with two district judges; what business Justice Lake had out of his own district, rendering judgments in Otoe County, where Hon. O. P. Mason was presiding; and the like. Had the record — 67 — sent here been made up in the usual way, and in accordance with the directions of the statute, and after approved precedents, such discussions, which are not calculated to add to the dignity of courts and the credit which should attach to their proceedings, could not have arisen; nor should this Court entertain questions arising by insinuation, which it is evident could not have been supported if made directly, and brought properly into the record, with all the facts attending them. A proper record, in its caption, as introduction, should show a competent court to render the judgment sought to be reviewed or used; the constitution of the Court at the time of its rendition, as “ Pleas before his Honor,” &c., showing a term of the Court regularly held, convened at the proper place, and presided over by a judge having authority. This is followed by a minute of each step taken, as the filing of the respective pleadings, the journal entries made in the cause, and concluding with the judgment. There is no more propriety in interjecting into the note of the clerk, introducing the journal entries into the complete record, the remark that this or that judge presided, than there would be to show that he presided in Otoe County, rather than in Iowa, where he would have had no jurisdiction. Vide sect. 677, Code, also form for complete record. Nash. Prac. 724 ; Rules of Sup. Ct. Iowa, 1870, sect. 100. In this regard, this record, differing from those usually sent here, and being unlike those which come from the same county, I can but presume this addition was made in that case by direction, in order to form the basis upon which to raise some question as to the competency of the Court. If, in good faith, counsel thought that the entry was a nullity, why not, in the year and a half, have moved to expunge it ? Then the Court could have passed upon it, and all the facts show — 68 — ing jurisdiction been brought up in a bill of exceptions. The record, eliminating that which has no business here, shows a ease regularly brought into a court of competent jurisdiction, presided over by a judge fully qualified to sit, a trial had before him as the Court and the judgment, and the judgment of the Court given; and it would be unbecoming us to tolerate any attack upon its jurisdiction, or the regularity of its proceedings, by any gratuitous comments of the clerk. Omnia prcesumuntur solenniter esse acta. What authority there is for making the second judgment entry based on the record of the first, I cannot discover. The Court, prefacing its judgment with the remark that no record, of judgment appears, does not destroy the fact, if one did appear. We will suppose the Court to have overlooked it, or have been misled by counsel. To call a judgment a finding makes it none the less a judgment. A summons is not an execution, nor an almanac a pleading, even if called so on authority of a court. So I am at a loss to know how the Court of March, with either Justice Mason or Justice Lake, or both, if you please, had enough authority to pronounce a decision, and still fail in its vitality to direct a judgment upon it. The record shows that here at this (March) term of Court, “ on consideration of the premises, and the Court finding all the equities of the case with the defendants, it is considered,” &c., — the finding and judgment of the Court coming at the same breath. Unlike the provisions of the New-York Code, where judgments are not necessarily entered in term time, and where, the trial being had to the Court without a jury, its decision is given in writing, and filed with the clerk within twenty days, here the decision is the act of the Court done in term. If Justice Lake was present at the March term to announce his decision, he was equally there for the pur — 69 — pose of directing judgment of the Court upon it. If his actual presence at the term was waived, and by consent, as is frequently the case, his decision was entered as though present, there is equal authority for entering the judgment. If Hon. O. P. Mason presided exclusively at the March term, the records were completely under his control. The clerk makes entries of orders and judgments only under direction of the Court. 887 & 889 sects., Code. These entries are to be read over from time to time in open Court, and, when correct, shall be signed by the judge. Sect. 17, chap. 13, R. S. Evident mistakes in the record can subsequently be corrected. Sect. 21, Id. So there can be no suggestion that this record found~~\ its way improperly on the record. If Judge Lake was not present, Judge Mason permitted the judgment to be entered, followed by the addition, “By the Court, — George B. Lake, Judge;” showing by that, that, for that case, Judge Lake, and not Hon. 0. P. Mason, presided. The statute allowing judges to interchange does not compel them to do so an entire term; but it may be for a week, a day, or for the few minutes necessary to announce a decision and direct a judgment. Hon. 0. P. Mason may have presided generally at that term; but, whatever the fact may be as to Judge Lake’s actual presence, the record shows well enough that the judgment entered at the March term was one entered by a competent court, George B. Lake being the judge thereof, leaving this attempt to confound the records to stand. We will not indulge any presumptions against the regularity of proceedings in courts of record. The appeal must be dismissed. Lake, J., concurred.