2 Wyo. 213 | Wyo. | 1880
Lead Opinion
The court is of opinion that there is no error in this case for it to review, reverse or modify, so far as the record shows.
From an inspection of the transcript of the record it appears that the defendants in the court below, the district court held in and for the county of Uinta, H. Garbanati and A. H. Davis were served with process on the 27th day of February, 1878, the petition to begin the action being filed that day in the clerk’s office of said court at the county seat of Uinta county, and process being served on said defendants in that county as the return therein shows. ’ The defendants should have answered or demurred by the 30th of March, 1878, which was the third Saturday after the return day of the summons: this they both neglected and failed to do.
Afterwards a demurrer was filed July 1st, 1878, by one of the defendants, H. Garbanati, the other defendant not appearing.
The record does not show affirmatively that it was filed by leave of the court; if such affirmatively shown leave were necessary, of which it is not necessary for the court
On the same day, July 1st, as appears from the transcript of proceedings brought here, and after H. Garbanati, one of the defendants, had filed a demurrer, the defendants, Gar-banati and Davis, were solemnly called three times into court and came not.
Again on the 5th of July, 1878, a trial was had in said court as by default, and a judgment rendered in favor of Beckwith & Co., the plaintiffs below, against the defendants Garbanati and Davis.
In this state of facts H. Garbanati, one of the defendants below, comes into court and seeks by proceedings in error to have the judgment of the court below reviewed, reversed or modified.
To our minds it seems that there is but one conclusion that can be reached, viz.: that the plaintiff in error here, II. Garbanati, had abandoned his demurrer in the court below, even if it ever was properly there, and that he and his co-defendant, Davis, if not consenting to a judgment there in that court against themselves, certainly, so far as this court is advised by the transcript of the record, did not oppose or object to the rendition.
They had due summons in this action and failed to make a proper defense or any defense at all, at the right time in that forum to which they were duly summoned; and in which, if they had a valid objection or defense to the action under the laws of this territory, they should have appeared seasonably and made them. And failing to do so in the court below when properly called, they, nor either of them, have any cause of complaint here which this court can or ought to consider.
Wherefore it seems to the court that the proceedings in error in this case should be dismissed, and the judgment of the court below affirmed with costs under the statute.
Dissenting Opinion
dissenting.
The defendant in error moved for affirmance, “ because the record presents no question for review.” If the record presents a question, which this court could, it presents one which this court should have reviewed; and that fact answered the motion'. It matters not what the merits of the questions are; it suffices that there was-the question. Its merits would have remained for determination after the denial of the motion; because the record would speak what the motion denied: namely — the existence of the question. Granting the motion excluded, denying it admits the question. The record does present such a question; and the motion should have been denied, reserving the enquiry for hearing. The court, however, might have directed it to be heard in the 'first instance, and in answer to the motion; the principle would have been the same, the form different.
The defense in error put the motion on the ground that the plaintiff here, the defendant below, had there made no formal allegation of error. The prosecution in error opposed on the ground, that such allegation was unnecessary in case of patent defect of jurisdiction; and that the record prevented the enquiry whether there was not such defect, notwithstanding the statute of September 15th, 1877, entitled, “An act to provide for the organization of Crook and Pease counties, and to provide for holding courts therein.” — Laws of 1877, page 34; and this proposition was correct.
As to objecting to a patent jurisdictional defect without a formal allegation of error. The record presents no allegation, as made below by the plaintiff in error, by exception or otherwise, that the lower court erred; but if it discloses an incurable defect of jurisdiction in that court, it discloses a defect that carries its exception with it, by operation of law, without formal allegation, wherever the record may go;
This principle of the common law, which is our rule, fixed, and clear beyond intelligent doubt, inherent in the very necessities of justice, and inseparable from the safe exercise of judicial power; and every court should readily listen to objection as to jurisdiction, the more carefully to guard against the mischiefs resultant from the erroneous assumption of it. This court so decided at its
The record shows that the plaintiff in error demurred specifically for want of jurisdiction over his person; that subsequently he was defaulted; that the court assessed damages, and entered judgment against him on the default ; and that issue, raised by the demurrer, was not otherwise passed upon, than by the proceeding, which so transpired after the demurrer was interposed. It follows from the principle, now explained, that the demurrer, if well taken, was superfluous; that all the proceedings against the present plaintiff, both before and after judgment, were void; and that it was our duty, on more inspection of the record, to reverse and dismiss.
My transcript was given to this court by the clerk of the second judicial district court, under what purports to be its seal for Uinta county; and all the proceedings, recited in it, transpired in that court, which is described as the second judicial district court, sitting in and for that county, where the .venue was laid, where alone the court would exercise jurisdiction upon the summons, where the present plaintiff was alone — if at all — bound to appear, where he did appear, and where all the proceedings were . had. The suit was commenced on February 27th, 1878. The record does not state in terms, but presents the necessary presumption that the court was held in all the proceeding below by the Hon. Jacob B. Blair, the judge of the second district.
The motion touched an inquiry of primary moment — one which this court should have been rather eager to hear than to avoid. Notwithstanding these formidable considerations, without the matter having been heard upon its merits, or considered in conference, the majority of this court has granted the motion, and affirmed the judgment. If the jurisdictional objection was sound, a fortiori the motion should have been denied, the appeal sustained, the judgment reversed and action dismissed. The Federal Constitution, at Art. 4, Sec. 3 and subd. 2, provides that “ Congress 'shall have power to make all needful rules and regulations respecting the Territory of the United States.” Our organic act, at sec. 4, “ that the Legislative power and authority of said Territory shall be vested in the governor and legislative assembly; ” at sec. 6, that the legislative power of the “Territory shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act;” and, at sec. 4, that all bills shall be submitted to the governor for his concurrence or objection; at sec. 9, that the Territory “ shall be divided into three judicial districts, and a district court
If this statute contemplated the extension of the second before the organization of the new third district, could it have that effect under the Federal statute, which allows the Territorial Legislature to district and re-district ? The provision that the Territory shall be divided into three districts, and a district court held in each by a resident judge, is imperative, at once puts upon the legislature a duty, and conditions and limits its performance; requiring a division to be made into three districts, it requires' the districts to be maintained; requiring the court in each to be held by a resident judge, it requires the division to be made between the three judges, a district to a judge, the very clear purpose being to secure to the community, and against the caprices of legislation, the most judicious division, with reference to the wants to be supplied, — the most beneficial administration of law through the district courts by all the judges, — and, to that end, the localizing of the work, at the same time effectuating the judicial appointments; approximate equality must, therefore, have been intended.
The power to re-district is necessarily governed by the
Does it intend that extension ? The answer requires that it should be construed as an entire context; therefore each part relating to the rest; and in the presumption, that its purpose was subordinate to the law; and the presumption will hold, unless the statute overcomes it. Its provision that it shall take effect from its passage, does not mean that all its provisions shall operate at once; that would be impossible, and the construction absurd; but that they shall operate sequentially, according to the object — for that alone is possible, and that construction consistent. It declares as the first step to be taken, that the- governor shall organize Crook and Pease counties by appointing and commissioning for them the officers, already provided by law for the several counties, which officers include county commissioners. As the second step, 'that the commissioners of each county shall locate its seat. As the third step, that the courts shall be held at those seats. All this accords precisely with the requirements of the Federal law, that the existing third shall continue, until the new third comes in. The language, that those counties “ are hereby ” organized into the third judicial district, is an ungrammatical expression, which intends a future effect, to result from a future act— the act of organization, which is to be; so that “are hereby”
Is it valid? The court must take notice of the geographical status of the Territory, and of all its parts. At the passage of the act each of the counties, proposed for a new district, was in the feeble initial state of development; its population thin, and so small as to be unequal to furnishing the five hundred electors, whose petition for a county organization was requisite by the third section of the Act of December 8th, 1875, Compiled Laws p. 198, providing for the organization of those counties — though men and women were electors; and were in the extreme of disproportion to that of either the first district, or of the second as much larger the population of each of which amounted to thousands ; the capital, industry, business of the projected new ones were in the same extreme of disproportion to those of severally the first and second districts: so that the unmistakable purpose of'the project was, not to accomplish the idea of an approximate equality, and so to satify the organic act, but to promote disparity, and to violate the act. In addition to this extrinsic and characterizing fact, the statute discloses on its face that its direct object is to displace from his sphere the judge, whom it assigns to the new district. This feature involves two other objections — one, that the statute was an attack upon the dignity of the judicial office, and upon the independence and rectitude of the bench — the other, that it is an attempt to frustrate the constitutional action of the Federal government, and thus to conflict with the Constitution. For each of these reasons it was a breach of the trust reposed by the government in the Territory, and void.
Again: to district or re-district, a place or places for holding the court within the given district must, as a part of the process of district organization — which has to succeed the county organization — be designated; but, as no commissioners can be appointed, no designation can be made, and an attempt to re-district under the act would be abortive. But, suppose that the statute had validly provided for the county organization, and the county commissioners, so coming into existence, had designated the places in the district — the entire process of the district organization must be prescribed by “ law,” which means by the legislature and governor, who — the latter — must have the power to veto or of approval in the matter; the duty is imposed upon their discretion; that discretion applies equally to all the parts of the process, and no part of it can be delegated; it is a trust and cannot be shifted. Hence if the statute succeeds in other respects, it totally fails in this one.
Was the second district judge competent, as such, to sit
Section 1. — That the Hon. J. B. Blair, associate justice of the supreme court of the territory, may have and receive an additional compensation of one thousand dollars per annum for his services as judge of the second judicial district of this territory, in holding terms of court in Albany and Carbon counties, and in Sweetwater and Uinta counties.
Section 2. — That the additional compensation allowed in the preceding section shall be paid in equal quarterly installments from the funds of the treasuries of said counties on warrants which the respective boards of county commissioners of said counties shall cause to be issued, each county aforesaid paying one-fourth of such additional compensation.
Section 3. — That if the said Hon. J. B. Blair do not hold the regular terms of court in said counties of Sweetwater and Uinta, then and in that event ■ sections one and two of this act shall be inoperative and void; but the county commissioners of Albany county aforesaid may nevertheless allow and cause to be paid to the said Hon. J. B. Blair, as extra compensation for his services, as judge therein, the sum of five hundred dollars per annum, payable quarterly out of the county treasury, as other claims against said county are paid, which additional compensation shall continue to be allowed during the said J. B. Blair’s incumbency of the judgeship of the second judicial district aforesaid.
Section 4. — This act to take effect and be in force from and after its passage.
Approved December 15th, 1877.
The two statutes of December 15th are in pari materia; and must be construed as if they were embodied in one; they stand as one; and I treat them as if that was their form. The act is imperative that he shall hold the courts in the additional, as well as in the original counties; and the words in the third section, “that if the said Hon. J. B.