98 Cal. 360 | Cal. | 1893
— A trial of the issues herein was had in Inyo County before Hon. J. F. Rooney, judge of the superior court of Tuolumne County, who had been directed by the governor to try the cause on account of the disqualification of the superior judge of Inyo County, and on the 26th of September, 1890, the judge filed his findings of fact and conclusions of law, in which he found “ that the plaintiffs herein are entitled to judgment,” and added as a closing direction, “counsel will prepare an interlocutory judgment in favor of the plaintiffs, directing a reference to a commissioner to be appointed by the court to take an account between the parties.”
Between the hours of six and seven o’clock in the afternoon of January 5, 1891, the clerk received through the mail a document, signed by Judge Rooney, which purported to he a formal judgment in the case, and which the clerk afterwards entered in the judgment-book of Inyo County. Judge Rooney’s term of office expired on the first Monday of January, 1891, and the newly elected judge of Inyo County had assumed his office on the morning of that day. On the 9th of February, 1891, the defendants Conklin gave notice to the plaintiffs that, on the ninth day of March, 1891, they would move the court “ to strike from the files, and to strike out and cancel and set aside” the
1. Upon this appeal the regularity of the proceedings in transferring the cause to Mono County cannot be considered. If any condition of facts could exist under which the transfer would be authorized, the action of the court in making the transfer will be upheld whenever collaterally attacked. Section 170 of the Code of Civil Procedure prohibits a judge from sitting or acting in any action in which he may be disqualified, except that he may transfer the action to some other court; and section 398 of the same code provides that, if an action is “pending” in a court, and the judge thereof is disqualified from acting, it must be transferred to the nearest court where the like objection does not exist. We may assume upon this appeal, not only that the judge of Inyo County was disqualified from acting in the cause, but also that the superior court of Mono County was the nearest court in which the like objection did not exist. If for any reason the order of transfer was erroneous, it could have been reviewed by a direct appeal therefrom.
2. Upon the expiration of his term of office the judicial power of Judge Rooney ceased, and it was not competent for him thereafter to do any act necessary to complete the trial of any cause which then remained unfinished. (Mace v. O’Reilley, 70 Cal. 231; Connolly v. Ashworth, ante, p. 205.) The trial of the issues of fact in an action is not completed until the decision upon those issues has been given by the court (Hastings v. Hastings, 31 Cal. 95), and this decision must not only be given in writing, but it must also be filed with the clerk. If not filed until after the expiration of the term of office, it cannot form the basis of a judgment. (Connolly v. Ashworth, ante,- p. 205.) Section 633 of the Code of Civil Procedure
It sufficiently appears in the present case that at the time when Judge Rooney filed his findings of fact and certain conclusions of law, he did not himself consider that the action had been fully tried. His conclusion that the plaintiffs were entitled to judgment was qualified by the next clause, in which he directed counsel to prepare an interlocutory judgment for the purpose of directing a referee to take an account between the parties. It is manifest from this direction that the character and extent of the judgment was not to be determined by him until after such account had been taken. The conclusions of law which he had then made were insufficient as the basis of the judgment which he evidently intended to render, and it still remained for him to make further conclusions of law as the basis of his judgment, or to incorporate them in the order for a reference and an accounting which he had directed to be prepared.
4. Upon the findings that were filed in September the clerk was not authorized to enter any judgment. It is unquestionably true that when a judgment has been rendered, the subsequent act of the clerk in entering it is only ministerial, and may be done by him even after the expiration of the term of office of the judge by whom the judgment was rendered. If the judgment which was entered herein had been in fact “rendered” by Judge Rooney prior to January 5th, it would not have become nugatory by the failure of the clerk to enter it until after that date. The signature of the judge is not necessary to the validity of the judgment (Crim v. Kessing, 89 Cal. 489), but it is of sei’vice in determining what has been adjudged; and in its absence there must be something of record, as, for example, the minutes of the court, or the conclusions of law stated in the findings, by which the clerk can be guided in the performance of his ministerial duties, and from which the actual judgment of the court can be ascertained, and by which it can also be determined whether the clerk while acting in a ministerial capacity has correctly entered such judgment. There are many judgments whose entry involves nothing more than clerical or ministerial duties, such as a judgment for the recovery of specific real or personal property, or a fixed amount of damages, or one which is rendered generally that the plaintiff is not entitled to recover his demand from the defendant. In such cases the mere order for judgment in favor of the defendant or the plaintiff is all that is needed for the clerk, but in many other actions, and especially in those of an equitable nature, the form of the judgment, and the character of relief that is to be granted, are as much a matter for the exercise of judicial power as is the determination of the party in whose favor judgment is to be rendered.
The order is affirmed.
McFarland, J., Garoutte, J., De Haven, J., and Beatty, C. J., concurred.