Illinois Central Railroad v. Bowles

71 Miss. 994 | Miss. | 1894

Campbell, C. J.,

delivered the opinion of the court.

William C. McLean, Esq., was commissioned by the governor, in pursuance of § 165, constitution 1890, to preside at the December term, 1893, of a circuit court, and presided and tried this case. The bill of exceptions, as appears from the transcript, was signed by the regular judge of the court, and the motion is to strike it out for that. This presents the question by whom is the bill of exceptions, prepared and tendered after the expiration of the term, to be signed so as to make it part of the record? It has been attempted in this state to regulate, by express statutory enactment, the preparation and signing of bills of exception. Ordinarily, there is no place for doubt as to who should sign. The diversity of view shown by this case, arises from the fact that a specially commissioned judge presided and the regular judge signed the bill of exceptions; and it is contended that this is in conformity to § 736, code 1892, which, in providing for presenting the bill to the “judge of the court,” means the regular judge; and it is claimed that this language is not appropriate as applied to the special judge. The sections of the code to be considered are 733, 735, 736, 920 and 921. It is apparent that the primary idea as to who should sign a bill of exceptions, is that the judge whose decision is excepted to should sign, and this accords with the fitness of things, and is plainly contemplated by the first two sections cited. A different idea would have to be clearly disclosed by other sections to justify a disregard of what is plainly provided for by what has gone before. The ground for contention is found in the other sections. The terms, “judge of the court,” used in § 736, apply as well to the special judge as to the judge of the district, who is mentioned in the constitution in several places as judge of a court. It seems to us to apply in this section (736) to the special judge. He is judge of the court, and the proper person to do all that pertains to the court at which he presides, and to him any bill of exceptions to his rulings should be presented, and he is to sign. This is in harmony with the subject. The law might provide any appropriate mode of making a bill of exceptions, but it compoi’ts with propriety that he whose actions are excepted to should certify what it was, so as to speak for himself in that respect. We think this view is an obvious one from the sections discussed, but when §§ 920 and 921 are referred to, all doubt must be removed. Section 920 provides that when a member of the bar is selected and presides, no notice of it shall be taken, and no entry on the record of this be made, but the “records, minutes and proceedings shall be and appear, in all respects, as if the cause had been heard and determined before the judge,” etc. It has been decided that signing a bill of exceptions is part-of the proceedings.

Section 921 was intended to carry into effect § 165 of the constitution. It was wholly unnecessary, for the constitutional provision was effective without legislation. It does not accurately express the provision of the constitution in several particulars, aucl is not a safe guide to effectuating the constitution on this subject, but, of course, the constitution governs wherein the statute fails to conform to it. The requirement of the section that the facts should be certified to the governor is free from objection, though hardly necessary, as it may be supposed those interested would give the governor necessary information on which to act, as provided by the constitution. The last sentence of the section provides, “if the appointment be for holding a term of court, the proceedings shall be as if the special judge were the regular judge of the court.” This seems to provide expressly for the signing of bills of exception by the special judge commissioned to preside at a term of court — a provision not necessary, if we are right in assuming, as we have done, tb at, unless otherwise plainly required, it would devolve on the judge who presided at the term of the court to sign bills of exception. Manifestly, the contemplation of the constitution is that the special judge commissioned to preside at a term of court, shall be a substitute, for the time he is authorized to preside, and does preside, of the regular judge, with all his powers and duties ; and, as bills of exceptions may be prepared and presented and signed by the judge of the court after the actual termination of the session, nunc pro tunc, it is to the judge who presided that the bill of exceptions is to be presented, and by whom,it is to be signed. Tie is judge, with all the powers of such, during his term, that is, while he is to preside at the term, and after the term, he may, by virtue of the statute, sign a bill of exceptions, as to which his power is continued, this being a matter growing out of his administration as judge.

In this case, the governor, with wise circumspection, followed the constitution, and not the statute, in commissioning a special judge. In the following particulars, § 921 of the code varies from § 165 of the constitution, viz.: The constitution provides: “"Whenever any judge of the supreme court or the judge or chancellor of any district in this state shall, for any reason, be unable,” etc. The statute is: “ Whenever. any circuit judge or chancellor is unable, from sickness or other physical disability, to attend,” etc. The constitutional provision is for a special judge, “ where the attorneys engaged therein shall not agree upon a member of the bar to preside.” The statute has “ cannot agree.” The constitution is, “ be unable or disqualified to preside at any term.” The statute is, to attend and hold any of the courts.” The constitution is, “ may commission ... to preside at such term, dr during such disability or disqualification, in the pla.ce of the judge,” etc. The statute is, “ to attend and hold said court.” The constitution provides for commissioning special judges of the supreme and circuit and chancery courts, on the same contingency. The statute omits the circumstance of non-agreement of attorneys on a member of the bar to preside in the supreme court. The constitution contemplates the presiding of a special judge or chancellor, only during the disability or disqualification of the judge or chancellor, while the statute seems to contemplate his holding a term. The statute makes inability from physical disability the contingency for a special judge or chancellor, while it makes any inability to preside ground for a special judge of the supreme court.

It follows, from what we have said, that the motion to strike out the bill of exceptions signed by the regular judge must prevail. But it has been made known to us, during the consideration of this motion, that the facts are that the bill of exceptions was presented to Special Judge McLean, who signed it in' the left-hand lower corner of the concluding page thus, “O. K., Wm. C. McLean,” with a ring drawn around it, and the purpose of this was to authenticate it as correct to the regular judge, so he would sign it. The question, then, is whether this can be taken as signing by the special judge? We think it may and should be. He signed it. True, he did not sign it with the idea that that was sufficient, but his erroneous view did not hinder the legal effect of his signing. He intended to attest it and authenticate it, not for this court, but that it might be signed by the regular judge, supposed to be necessary, but not necessary, to make it the bill of exceptions in the case; and the fact that he was the one to sign, and did sign, whatever his view, meets the requirement of the statute making signing necessary to a bill of exceptions. The numerous cases as to declarations of trust and signing required by the statute of frauds, illustrate our view of the signing in this case.

Therefore we will give opportunity to show the facts as to the signing the bill of exceptions by the special judge, and, if they shall be established as we have assumed th'em to be, we will consider the bill of exceptions as having been properly signed by him, and the signature of the regular judge will do no harm, but be treated as surplusage.

Afterwards it was shown that the special judge had signed the bill of exceptions in the manner suggested by the court, whereupon the motion to strike out was overruled.