2 Wash. 525 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
— The statement of facts to support the appeal in this case was settled by the judge who tried the same after he had gone out of office, and his successor had assumed the duties thereof. For this, among other reasons, respondents move the court to strike such statement, and affirm the judgment of the court below. Our statute in relation to this matter provides that such statement shall be settled by the court or judge who tried the cause. Hoes this provision authorize the settlement of such statement by a private individual simply because at one time he was the court or judge who tried the cause? I think not. That the settlement of such statement is the exercise of a purely judicial function is conceded, but it is contended on the part of appellants that the language of the statute is broad enough to confer upon such private person such powers, their theory being that, by virtue of such statute, it must be held that the legislature intended that so much of the judicial power of the judge as was necessary for such purpose should be retained by him after he went out of office. I can see nothing in the language used by the legislature to warrant such a contention. The words “court or judge” cannot be held without too strained an effort to mean not only what they say, “the court or judge,” but also the person who was the court or judge on a certain day long past. In the absence of a statute expressly or by necessary intendment providing for the exercise of such powers by a judge after he had gone out of office, I am of the opinion that it would be
Several other reasons were assigned by respondents why this statement should be stricken, but the conclusion to which we have come as to this principal one makes a decision thereon unnecessary. The motion to strike must be granted, and, as that leaves nothing upon which the appeal can stand, the judgment of the court below will be affirmed.
Dissenting Opinion
(dissenting). — I respectfully dissent from the conclusion reached by the majority of the court. The duty of settling a statement of facts, which is to be made a
“Even if it be admitted that the act of the judge in signing the finding on appeal is a judical act in the sense claimed by the plaintiff, and that the act was done after he had ceased to.be such judge, no authority has been brought to our attention denying the legislature the power implied in the law in question. No substantial reason is given why the legislative power is incompetent to authorize judicial officers, after their term of office, to complete the history of trials had, and to give permanent and official form to facts found during their term of office. Such acts are rather clerical than judicial.”
In Wisconsin it has been the uniform practice for judges, after their term of office, to settle bills of exceptions, on the ground that, if not permitted so to do, a party would be deprived of the benefit of an appeal. Fellows v. Tait, 14 Wis. 156; Davis v. Village of Menasha, 20 Wis. 194; Hale v. Haselton, 21 Wis. 320. The courts of Indiana take the opposite view of the question, and hold that such acts are judicial, and can only be done by a judge while in office; but as to what the statutes of that state are upon the subject, I am not informed. In State v. Barnes, 16
“The duty of settling the bill now being imposed upon the person ‘ who heard or tried the case/ it seems clear to us that the duty attaches to the incumbent at the time of the trial, and continues until it is performed, subject to the exceptions contained in the statute.”
To my mind, our statute is equally as clear as the one under consideration in that case, and all the reasons there given by the court are applicable to the case at bar. For the foregoing reasons, I am of the opinion that the motion to strike the statement of facts from the files should be denied.