Marengo Savings Bank v. Byington, 135 Iowa 151

Marengo Savings Bank v. Byington

135 Iowa 151 | Iowa | 1907

McClain, J.

1. Courts: adjournment of term. The records of the district court of Iowa county at its October term show regular adjournments to the succeeding day or a succeeding date, until November 13th, when, as the record recites, “ Tuesday morning, November 13, 1906, court convened as per adjournment, and continued in session during the day when it adjourned.” A subsequent order adjourning the term sine die, signed by the defendant, is of record, reciting the 31st day of December, 1906, as the date of such order, and bearing file mark showing its filing on January 1, 1907. The contention for the plaintiff in this proceeding is that the entry of. date, November 13, 1906, amounted in law to a final adjournment of the October term, and that the judge was without jurisdiction to transr act further business as of that term. The terms of the district court for each county are to be as fixed by the judge or judges of the district in which the county is included. Code, section 229. There is no question as to the fact that by proper order of the judge the October term of the district court, of Iowa county was fixed to commence on the 8th day of October, 1906, and that the succeeding term was fixed to commence in January. It is further provided (Code, section 238) that “ upon any final adjournment of the court all business not otherwise disposed of shall stand continued.” If the entry of November 13th was a final adjournment of the court, then the case of Ridings v. Marengo Savings Bank *153then pending in that court was continued until the January term. Being so continued, no judgment or decree in the case could properly be entered prior to the convening of the January term.

That this entry of November 13th was an entry of final adjournment cannot, as we think, be seriously questioned. An 'adjournment of the court is a final adjournment for the term, unless there is some provision in the order itself or by statute that the court shall reconvene for the transaction of the business of that term. Dunn v. State, 2 Ark. 229 (35 Am. Dec. 54); Irwin v. Irwin, 2 Okl. 180 (37 Pac. 548); In re Murphy, 73 Vt. 115 (50 Atl. 817). The subsequent entry of an order adjourning the term sine die is of no significance if the term was already adjourned by the entry of November 13th. If in fact this entry of November 13th was erroneous, it could have been corrected^ by an entry nunc pro tunc conforming it to the facts; but no application for such correction appears ,to have been made. The order for a decree filed November 17th and the decree filed December 29th were therefore not made during the term of the court, but were, in fact, made while the cause stood continued by operation of law, and when no further proceedings in the case could properly be taken, unless the judge had authority to enter such order and decree in vacation.

3. Entry of decree in vacation. In Code, section 247, it is provided that, “ with consent of parties, actions . . . may be taken under advisement by the judges, decided and entered of record in vacation or - at the next term.” But it has uniformly been ** held by this court that an order or judgment cannot be made in vacation unless by consent' of parties, or otherwise, the case has been submitted to the judge to be considered and determined during vacation. In the absence of authority to make a ruling or decree in vacation, any ruling or decree thus made is without jurisdiction.*154State v. Hathaway, 100 Iowa, 225; Young v. Rann, 111 Iowa, 253; Whitlock v. Wade, 117 Iowa, 153.

Counsel for appellee rely upon the case of Landt v. Remley, Judge, 113 Iowa, 555, in which it is said that a party who applies for an order in vacation cannot after-wards object to a modification of the order made, which is also entered in vacation. But, as indicated in the opinion, this was an exceptional case, and was not regarded as infringing upon the general rule that a judge ,has no authority to make an order in vacation except as authorized in accordance with the provisions of the statute. The other cases relied upon for appellee are subject to similar explanations. We see no occasion to further discuss a rule which is so fully settled by the prior decisions of this court. There was not only no consent on the part of the defendant in the ease of Ridings v. Marengo Savings Bank to have a decision made in vacation, but exception to such decision was expressly entered of record on that ground before the decree was filed.

Under this record the decree called in question by this certiorari proceeding was entered without jurisdiction, and it is therefore annulled.