102 So. 850 | Miss. | 1925
delivered the opinion of the court.
Palilus Horn filed his bill in the chancery court for the specific performance of a contract against C. G. Callicott based upon a contract for the purchase of a plantation. From a decree sustaining complainant’s contention the defendant in the court below appeals
The assignment of error to which we shall refer is as follows:
“The decree was signed by the chancellor in vacation when no order had been entered on the minutes of the court in term time at which the case was tried and submitted for decision, taking the. case under advisement for decision in vacation.”
The record discloses that this case was tried and submitted for decision at the regular February term, 1922, of the chancery court of the First district of Bolivar county.
The decree bears date of December 29, 1922, and recites that “by order and decree of the court this cause was taken under advisement for decision and decree in vacation as in term time. ’ ’ The record further shows that at the February term, 1922, of the court, no order was entered taking this cause under advisement, and it is conceded in the briefs that no order appears on the minutes of the court.
There intervened the time for holding another term of court between the date of the February term and the date of the decree December 29, 1922. The decree was signed by the chancellor a few days before his term of office, expired, which was the first Monday of January, 1923. This cause was attempted to be disposed of by the decree signed and entered in vacation, and the action of the court was duly excepted to by the defendant there, the appellant here. No consent of the parties appears in the record to try the cause in vacation, and the decree itself is certainly a substantial part of a trial.
No power is vested in our courts to try causes in vacation, unless such power is expressly vested by statute, and authority for a decree entered by a chancellor in vacation must be found in the statute.
“The chancellor may try causes in vacation.—-A chancellor may deliver opinions and make and sign decrees in vacation in causes taken under advisement by him at a term of the court; and by consent of the parties or of their solicitors of record, he may try causes and deliver opinions and make and sign decrees therein in vacation Such decrees and all other orders and decrees which a chancellor may make in vacation shall be entered and recorded on the minute book of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases.”
It will be seen from the language of this statute that a chancellor may sign decrees in vacation when heard in term time; and by the consent of the parties he may try causes and enter decrees in vacation. The record discloses in this case that the court heard same at a regular term and did not enter a decree taking the cause under advisement, and without such an order on the minutes of course the chancellor was without power, unless it be found in this statute, to enter a decree in this cause, and one so entered upon the minutes is erroneously there, void, and without effect. In 124 Miss. 188, 86 So. 582, 763, Gulf Coast Go. v. Gibbs, this court held that, circuit judges “in vacation have only such powers as are granted by statute,” and in that case held that the circuit judge was without power to correct the bill of exceptions in vacation and that he has only such power in vacation as is given by statute.
The statute authorizing; the circuit judges to do certain acts in vacation and the one under review here authorizing chancellors to do certain acts in vacation only differ in enumerating the several powers granted by the Legislature.
In this case there was no consent, and the court in term time must have -conferred by order on its minutes the power upon the chancellor to sign and have entered a decree in vacation, and there is no merit in the contention that an order could be entered nunc pro tunc. In the first place, the term of the chancellor has long since expired, and the matter is jurisdictional. Whatever may have occurred at the February term of that court with reference to this cause, we must adhere to the rule that courts of record as to jurisdictional facts must speak by their minutes. In the case of Wilson v. Rodewald, 61 Miss. 228, the circuit judge wrote out his judgment in vacation, having taken the case under advisement, carrying the papers with him to his home in another county. Two months later he returned the papers in a box to the circuit court clerk at Leflore county, together with an elaborate opinion disposing of all the points in the case, closing with a carefully drawn judgment in favor of the plaintiffs, all in his handwriting and signed by him. A few days later Judge Cothran died, and Hon. C. H. Campbell was appointed and qualified as his successor. At the next term of the court, upon motion, this judgment was entered as prepared by the deceased judge at the term time as the law then provided.
The court then very aptly stated the rule:
“And it is evident that without some statute there can be no authority in a judge to pronounce a judgment in vacation. The rendition of a judgment is the highest of judicial acts, and belongs to a court, and not to the person of the judge; nor is this principle changed by our statute, section 1707 of the Code of 1880, by which judges are authorized to take cases under advisement.”
So that in the instant case the power to take the cause under advisement was lodged in the court and not in the
On January 26, 1925, Division B of our own court, speaking through Judge Anderson, held that the chancery court is without power to hear and determine a cause in vacation without the consent of the parties thereto. See J. J. Newman Lumber Co. v. Allen Pace et al., 102 So. 570. judge Anderson'said in the opinion, supra:
“Courts are powerless to act in vacation, unless expressly authorized so to do by statute. ... . Clearly there is no authority there for a trial in vacation in whole or in part, if there be such a thing as a partial trial of a cause. By that provision of the statute it was intended alone to authorize the chancellor to decide and render decrees in vacation in causes already tried and submitted to him. ’ ’
To the same effect is Y. & M. V. Railroad Co. v. Lawler, 130 Miss. 421, 94 So. 219, where it is said: ‘ ‘ The court had no power under this statute to try any issue in vacation affecting appellant without its consent.”
The decree in the instant case being an entirety, and a necessary part of the trial, preparing and signing the decree on December 29, 1923, was not by consent and any authority of law.
The decree is void, and we cite as sustaining that view Coopwood v. Prewett, 30 Miss. 206; Scarborough v. Smith, 52 Miss. 517; Wilson v. Rodewald, 61 Miss. 228; Gulf Coast Co. v. Gibbs, 124 Miss. 188, 86 So. 582, 763; Y. & M. V. Railroad Co. v. Lawler, 130 Miss. 421, 94 So. 219; and J. J. Newman Lumber Co. v. Allen Pace et al. (Miss.), 102 So. 570.
Reversed and remanded.
