2 Neb. 60 | Neb. | 1873
Lead Opinion
A glance at this record raised no doubt in my mind that this appeal must be dismissed. The Court, however, not being unanimous in this view, and the motion being given the additional importance of a full day’s argument by able counsel in supjiort of the appeal, it is proper that the views of the majority be briefly stated. No question is made but that the District Court had jurisdiction of the persons and subject-matter involved in this action. The issues being complete, the trial of the cause came regularly on at the August term of that Court in the year 1868, and was submitted and taken under advisement by Justice Lake. Otoe County is one of the counties of the first judicial district, to which Chief Justice Mason is assigned to hold terms of the District Court. What brought Justice Lake from his district (the second) into Otoe County, we will not stop to inquire. The statute permits district judges to interchange and hold each other’s courts (sect. 16, page 50, R. S.) ; and we will presume he was rightfully there. The record showing Justice Lake in possession of the case, we find, that at the March term, 1869, an entry was made on the journal of the same Court, reciting the trial, submission of the cause, and the taking of the same under advisement by the Court by consent of counsel, the finding or decision of the Court, and its judgment thereon in favor of the defendant. With so complete a record, showing a cause over which the Court had full jurisdiction, — its trial, submission, finding,
As to the first of these positions, it was unnecessary to argue at length, or cite authority in support of the general proposition, that a judgment of a court of competent authority must be recognized till set aside or reversed. But the counsel for the other side invoke this same principle, and claim that the judgment of March, 1869, has never been set aside, or disturbed in any way:
So there can be no suggestion that this record found~~\ its way improperly on the record. If Judge Lake was not present, Judge Mason permitted the judgment to be entered, followed by the addition, “By the Court, — George B. Lake, Judge;” showing by that, that, for that case, Judge Lake, and not Hon. 0. P. Mason, presided. The statute allowing judges to interchange does not compel them to do so an entire term; but it may be for a week, a day, or for the few minutes necessary to announce a decision and direct a judgment. Hon. 0. P. Mason may have presided generally at that term; but, whatever the fact may be as to Judge Lake’s actual presence, the record shows well enough that the judgment entered at the March term was one entered by a competent court, George B. Lake being the judge thereof, leaving this attempt to confound the records to stand. We will not indulge any presumptions against the regularity of proceedings in courts of record. The appeal must be dismissed.
Dissenting Opinion
dissenting.
Conceding, for the purpose of the argument, that the entry of Aug. 17, 1868, did not show upon its face that it was not a judgment of the Court, it is still clear, from this record, that it was effectually displaced by the entry of Oct. 10, 1870. The last entry shows that the first entry, purporting to be a judgment, was brought to the attention of the Court; that an inquiry into the circumstances under which the clerk recorded it was had; and that the result of that inquiry was, that the clerk recorded it by mistake, and that the counsel of both parties was fully heard in the matter. It would have been more regular for the defendants to file a motion to correct the mistake, and take an order to that effect upon the hearing of the motion. Instead of that, a motion ore terms was made, to which the defendants appeared, without objection to the form of the proceeding; and the matter was heard as fully and fairly, and with all the means of arriving at the truth and doing justice, as if a more formal procedure had been had. I think the criticism of the majority upon the record very trifling.- It puts the form before the substance, the mode of procedure before right and justice.
The ease stands, then, in the attitude of one in which a party moves the Court to correct a mistake of the clerk in entering a judgment; upon the hearing of which motion, the Court finds that such mistake has been made, and proceeds to correct it. This the Court was authorized to do by sections 602 and 604 of the Code, which are as follows: “ Sect. 602. — A District Court shall have power to vacate or modify its own judgments or orders after the term at which such judgment or order was
“ Sect. 604. — The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action.”
Acting under this authority, the District Court heard this motion. And this record shows that an entry of judgment was made upon the journal by the clerk, without the intervention of the Court; and the District Court so found. And the record shows that this was a correct finding, as I shall explain hereafter. But whether it was or not is not now the question. The Court had the authority to inquire into the matter: it did so, and it found the fact. Its finding and its order thereon is final and conclusive until reversed. We are not here asked to review or reverse it, but to ignore it. To state the case is to determine it.
Much has been said about the mischief which would result from permitting a District Court to set aside a judgment, and enter another, thereby extending the time for appealing; and especially of setting aside a judgment in the ■ absence of the parties, and without their knowledge. A great deal of this is very true ; but it does not apply to this case. The record in this case shows that the parties had notice, did appear, were heard, the Court duly considered the case, found a certain state of facts, and adjudged accordingly. If objection be made to this course of proceeding, then let the legislature repeal the two sections above quoted. As long as they are the law, we ought to administer them.
A lengthy discourse on the mischief resulting from a
I have said enough to show that the entry of October was effectual to avoid that of August, and might stop content with this; but I am willing to look farther, and determine from the whole record whether the earlier in date was a judgment' final and conclusive, or only a finding of a judge upon which a judgment might, under proper circumstances, be entered. The Constitu
It is true, if the entry were not signed by Judge Lake, we should infer from it that the decree was the act of the Court: but even then it would be competent for the District Court to inquire what the fact was ; and, if it discovered on its journal an entry of a decree which it did not render, it would only do what was its plain dutv in setting it aside. And this is what was done in
Tbe majority in their opinion bave criticised the action of tbe clerk in inserting in tbe transcript, before tbe entry of March, 1869, a statement tbat “ Hon. O. P. Mason” was “presiding.” At tbe same time, they say tbat tbe transcript should, in its introduction, show before, what judge tbe proceedings were bad. I am unable to see tbat it is very material whether tbe name of tbe judge appears at tbe beginning or in tbe middle of tbe transcript. It is more regular and formal to place it in tbe introduction; but it is not necessary. It is enough if it duly appear; and why find fault with tbe clerk, and impute to him and to parties and counsel some ill-flavored design in making it appear ? If causes are to be adjudged in this Court on tbe mere formality of transcripts filed therein, few cases will ever be determined on their merits. Justice is not administered on any such frivolities. It Was tbe duty of tbe clerk to make this transcript as he did, unless be followed tbe more usual form. And be only disclosed what tbe facts were; namely, that a paper signed by Judge Lake, in tbe form of a judgment, in some way found its way upon tbe journal of tbe Court while Judge Mason was presiding therein, and while, necessarily, Judge Lake was not present. And it is these facts being made to appear by tbe clerk that tbe majority object to. I think the judgment of October, 1870, tbe one rightly before us for review, and tbat tbe motion to dismiss tbe appeal should be overruled.
Appeal dismissed.