19 Wash. 20 | Wash. | 1898
Lead Opinion
Tbe opinion of tbe court was delivered by
Tbe respondent moves to dismiss tbis cause on tbe ground tbat no appeal was taken by tbe bank, tbe contention being tbat tbe receiver could not appeal for tbe
The respondent also moves to strike the statement of facts, on the ground that the same was settled by the judge after his term of office had -expired, which calls in question the validity of § 12 of the act relating to the settlement of statements of facts, approved March 8, 1893 (Laws of 1893, p. 116, § 12; Bal. Code, § 5061), which authorizes and requires a judge whose term of office has expired to settle statements of facts in actions previously tried before him, it being contended that these provisions of said act are in conflict with §§ 1 and 5, art. 4, of the constitution.
The precise question raised here has never been expressly passed upon by this court, although the effect or result of several cases is to decide the principle in favor of the respondent. In State ex rel. Hinchey v. Allyn, 7 Wash. 285 (34 Pac. 914), which was an application for a mandamus to compel an ex-judge to settle and certify a statement brought under the act, Laws 1893, p. 6, the writ was refused on the ground that the law did hot purport to compel the judge to act.
Prior to these laws, in Faulconer v. Warner, 2 Wash.
In Gunderson v. Cochrane, 3 Wash. 476 (28 Pac. 1105), it was held that the court has authority to settle a statement where the term of office of the judge who tried the cause has expired.
A number of decisions elsewhere have been called to our attention upon this subject, and in many instances the power of a former judge to settle a statement, after his term had expired, has been sustained, but in nearly every instance it was under the view that. the settlement of the statement is a ministerial act, and not a judicial one, or on the principle that the finding of the trial judge as to what took place is conclusive. That it is essentially judicial in our practice is beyond question. In Van Lehn v. Morse, 16 Wash. 219 (47 Pac. 435), where a controversy arose between the appellant and the judge who tried the cause over certain matters which it was claimed took place at the time of the trial, this court, upon an application by the appellant to compel a settlement of the statement accordingly, appointed a referee to take testimony and certify it to this court, which was done, and the contention of the appellant was sustained. ISTo such practice could be had on the theory that the action of the judge in such matters is ministerial, nor could it be harmonized with the proposition that an ex-judge might .be authorized, but could not be compelled, to act, consequently we are bound to follow our former hold
Ho hardship can result, for the statement can be settled by the court. The identity of the judge is lost in the court, and the court continues, although the term of a judge is ended. Where a controversy arises the ex-judge can be subpoenaed and compelled to testify.
In the older practice, in many jurisdictions, the action of the judge who tried a cause in settling a statement could not be controlled. His own decision as to what took place Avas final; but that does not obtain here, nor is the difficulty of determining what did take place as great as formerly, owing to the fact that stenographers are usually employed now to take down the proceedings of the trial in de
As to the merits the question is left, whether the judgment rendered in the lower court is not contrary to the findings. The action was brought to recover the amount of a draft payable in Oregon, collected by the bank for the plaintiff while it was doing business. The material findings are as follows:
“That thereafter, to-wit: on the 14th day of October, 1895, plaintiff delivered said draft to the above named defendant Columbia National Bank for collection.
“ That on the 18th day of October, 1895, said defendant, the Columbia National Bank, by its agent, had collected for plaintiff from said treasurer of said company, saL1 sum of four hundred seventy-eight and 75-100 dollars on said draft.
“ That the said Columbia National Bank had in its hands moneyin excess of the said sum of $478.75 when said bank suspended, which went into the hands of said receiver.
“ That said plaintiff delivered said draft to said bank for collection only and for no other purpose.
“ That plaintiff never deposited or agreed to deposit the proceeds of said draft or any part thereof with said bank.”
In finding two it was found that the bank became insolventon October 24, 1895, a few days after the draft was collected. Do the findings negative a special agency or trust as to the proceeds of the draft? If they do, the judgment cannot be sustained. In Bowman v. First National Bank, 9 Wash. 614 (38 Pac. 211, 43 Am. St. Rep. 890),
“. . . the transaction, even if uninfluenced by any action of the respondents after the collection was made, would have established between them and the defendant bank the relation of creditor and debtor, and not that of cestui que trust and trustee.”
It was also stated that the custom of banks in regard to making collections and remitting therefor, was so well established and so universally known that the courts are required to take judicial notice of the fact that a bank, when it makes a collection, never, unless specially directed so to do, remits the specie collected, but remits in the form of a draft or certificate. Blake v. State Savings Bank, 12 Wash. 619 (11 Pac. 909), involved a somewhat different question, but the discussion covered the principle in this case and in effect decided it adversely to the respondent. The principle there in issue,under one view of the case, being a wrongful conversion of the funds; but it was held to establish simply the relation of a debtor and creditor on the ground that the money converted had been commingled with other funds of the bank, and had lost its identity so that a trust could not be established. The respondent undertakes to distinguish this case from the two mentioned, because there was no direction to remit the proceeds, but that the bank was to hold the money until the plaintiff called for it. There is no contention that there was any agreement that the particular money should be preserved in specie. In fact, it must be presumed, under the custom stated, that the particular money paid to satisfy the draft
There is no fraud found in this case on the part of the bank, if that would make any difference. Also, the draft deposited was the plaintiff’s own property, and not held by him in trust for another. It is not contended that the evi
Dunbar and Reavis, JJ., concur.
Dissenting Opinion
(dissenting). — I fully concur in the foregoing opinion of the Chief Justice on- the merits of this case, but not in the ruling on the motion to strike the statement of facts. Conceding that the act of determining what transpired during the trial of a cause is in its nature judicial, it nevertheless seems to me that it is not beyond the power of the legislature to authorize a judge, after going out of office, to state and certify what facts were disclosed, and what questions were decided, at the trial. In such cases all that is done by the judge is to complete the history of the trial had, and to put in the reqmred form the facts found during his term of office. I do not think that this court, in the cases heretofore decided, and cited in the opinion, intended to, or did in fact, go to the length of holding a statute like that now under consideration unconstitutional. Nearly all of these cases were decided before this statute was enacted. Other states have constitutions like ours prescribing that the judicial power shall be vested in certain specified courts, yet in several of them it has been held, after due consideration, that judges who presided at trials might lawfully certify bills of exceptions, after the expiration of their term of office. See State v. Barnes, 16 Neb. 37 (19 N. W. 701); Davis v. Menasha, 20 Wis. 194; Hale v. Haselton, 21 Wis. 325; Galbraith v. Green, 13 Serg. & R. 85; 2 Spelling, Extraordinary Relief, § 1412; Johnson v. Higgins, 53 Conn. 236 (1 Atl. 616).
Dissenting Opinion
(dissenting). — I concur in the disposition made of the motions, and also in all that is said upon the questions of practice, but dissent from the conclusion reached by my brethren in regard to the merits. I think the evidence conclusively shows that a trust relation was created between the bank and respondent, which continued until the appellant went into possession, that the proceeds of the draft went into the hands of appellant, and inasmuch as he is not in law a bona fide holder for value without notice, there is nothing to prevent the trust character being impressed upon the funds in his hands. Upon the facts the case differs widely from Bowman v. First National Bank, 9 Wash. 614 (38 Pac. 211), where the proceeds of the collection were to be remitted to the party who was seeking to impress the trust, and they were remitted according to the usual custom of banks, while here it was the duty of the bank to hold the proceeds of the collection until called for by respondent. I think the learned trial judge reached a correct conclusion, and that the judgment should be affirmed.