State ex rel. Newman v. Judge Sixth District Court

The opinion of the court was delivered by White, J. The relator, representing himself to be the holder and owner of warrants drawn against the general fund, amounting to two hundred and seventeen thousand dollars, filed a petition asking writs of [209] mandamus and injunction against the Treasurer and Auditor; of mandamus against the Auditor, to compel him to place to the credit of the general fund the sum of two hundred and sixteen thousand dollars, and against the Treasurer, commanding him to pay therefrom the warrants of the relator, with privilege over all other persons; of injunction against the' Treasurer, enjoining him from paying any portion of the sum to be transferred to the general fund to any other person than the relator. The prayer was for, after due proceedings, the issuance of the mandamus and the perpetuation of the injunction. The averments upon which the right to relief was founded were that the warrants of relator had been presented for payment and had been refused on account of want of funds, when, in consequence of article 3 of the constitutional-debt ordinance, there was in the treasury the sum of two hundred and sixteen thousand dollars applicable to the payment of the general expenses of the government, and therefore belonging to the general fund, against which the warrants of the relator were drawn. A rule nisi and preliminary injunction issued on the 19th January, the rule having been made returnable on the 22d, and on the 23d a decree was rendered making the alternative rule absolute and perpetuating the injunction. On the same day the court ex officio granted a new trial, and allowed the filing of an intervention, the issue now before us being a prayer for writs of prohibition and mandamus ; of mandamus to compel the vacating of the order granting the new trial, and of prohibition to prevent the trial of the intervenor. Divesting the case of all unnecessary issues, the simple question is, was the signature of the judgment premature; and if so, until the expiration of the three days allowed 'by law for a new trial, had the judge the legal right, after signature and before the lapsing of three days, of his own motion, to order a new trial ? ¥e say divesting the case of irrelevant issues, because we are clearly not now called upon to express any opinion as to the correctness of the judgment obtained by the relator, and because if the power existed to grant the new trial it is wholly immaterial what reason operated to bring about the exercise of the power. That a judgment signed before the expiration of the three days allowed for the application for a new trial is for the purposes of the new trial, and until the three days have run, in legal intendment not signed at all, is no longer an open question. Gardere vs. Murray, 5 N. S. 244 ; McWillie vs. Perkins, 20 A. 168. It is equally well settled that where a ease is open for a .new trial the 'court may order to that end o'f its own motion. O. P. 547. These elementary propositions we take as not disputed in the brief of counsel, which seeks to avoid the consequence to result from their application by contending that the judgment on the mandamus being ■summary did not require the three days to make it definitive, and there [210] fore it became final on its rendition. Conceding the correctness of the proposition for the purposes of the case only, the judgment below not only issued the mandamus, but it likewise perpetuated the injunction ; in which last respect it was clearly a definitive judgment, as to which the delays for a new trial were undoubtedly requisite. There was one judgment, not two; and the correction of error in any portion rendered a new trial necessary as to the judgment in its entirety. Whipple vs. Hertzberger, 11 A. 475. But we do not concede-that a judgment on a mandamus is such a decree as to become final on its rendition. That it is a final judgment has been determined. 24 A. 133. The mere fact that the proceeding is summary does not make the-judgment in which the proceedings culminated a summary docket. In the absence of positive provision of law, we would be without authority for treating a final judgment rendered in a mandamus proceeding differently from other final judgments. The rules are discharged, and tKe writs refused at the cost of relator.