Stacker v. Cooper Circuit Court

Scott, Judge, delivered the opinion of the court. We see no ground in the present application for a writ of mandamus against the judge of the first judicial circuit. Regularly, after the term at which a final judgment is entered, it can not be affected by the court in which it is rendered. But if the judgment is irregular, such as might be recalled by writ of error coram voids, then the court may on motion correct the irregularity. Here the final judgment was en [404] tered when, the order of reference was still in force. It will be seen by turning to the act concerning arbitrations (R. C. 1845, p.-,) that the failure of the referees to report within the time prescribed by the order of reference does not vacate the order, or its force is not spent by the efflux of the time; but the court may by its rule compel the referees to proceed and discharge their duty. Such a reference as was made in the case out of which this application arose, is not like an arbitration where arbitrators are by agreement selected and required to make their award within a given time. The- matter resting altogether on agreement, unless the arbitrators comply with the terms of the stipulation their act can not be binding. But referees appointed by the court are, like jurors, subject to its orders ; and if they fail to comply with an order of reference, the time of performance may be enlarged. After an order of reference has been made, until the order is disposed of no step can be taken in the cause towards obtaining a final judgment. It would be a surprise on a party to non pros, him for not prosecuting his suit when there was in existence an order for its reference. The party should either have taken steps to have the order of reference executed, or he should have moved to set it aside and have the cause placed on the docket. As the final judgment was irregularly entered, it was properly set aside. Writ refused; Judge Ryland concurring ; Judge Leonard absent.