92 Tenn. 126 | Tenn. | 1893
At thp September Term of this Court, held at Knoxville, the decree of the Chancellor in favor of the Radford Trust Company, and against the East Tennessee, Lumber Company and another, was affirmed, and an execution ordered to issue for the debt and costs. The defendants have now filed a petition in the cause, praying that the decree be superseded.
So far as this .relief is predicated upon the merits of the original cause, it must be most mafiifest to-learned counsel that it cannot he considered. The decree was final. The term has passed, and all power to inquire into the merits of the litigation is gone.
It is at the outset to be observed that the petition nowhere states or intimates that, either upon the original hearing nor upon the application for
If we limit the examination to the recitals of the particular decree, it would not appear who composed the Court, or that any other than- the regular members of the Court participated in its action. Ho written opinion seems to have been filed, and we cannot be aided by resoi'ting to s'uch opinion. If we look, however, to the caption of the minutes of the Court — and this is part of the record, by which the validity of the decree is to be determined — we find this recital: “ Thursday, October 27, 1892. Court met pursuant to adjournment. Present and presiding, the lion. Horace II. Burton, Waller C. Caldwell, Benj. J. Lea, David L. Snodgrass, and Hon. T. S. Webb, Special Justice, sitting by consent of counsel.” The record must be tried by the record. Its recitals, in a collateral attack, import absolute verity. Ho averment can be made against the record which depends upon extraneous facts. Kilcrease Heirs v. Blythe, 6
It must therefore he taken that T. S. Webb, in the absence of Chief Justice Turney, sat as his substitute, and acted as a special Judge by consent of the counsel representing the parties in this cause, and by consent of the Court.
But counsel have in argument assumed the position that consent does not operate as a commission, and that no consent of parties can make a Judge, or authorize one not a lawful Judge to sit and act as a Judge. In support of this position, counsel cite and rely upon a paragraph from the work of Judge Cooley upon Constitutional Limitations, in these words: “ If the parties cannot confer jurisdiction upon a Court by consent, neither can they by consent empower any individual other than, the Judge of the Court to exercise its powers. Judges are chosen in such manner as shall be provided by law, and a stipulation by parties that any other person than the Judge shall exercise his functions in their case would be nugatory, even though the Judge, should vacate his seat for the purpose of the ' hearing.” Side-pages 399, 400.
In support of this view the eminent author cites the single case of Winchester v. Ayres, 4 Greene (Iowa), 104.
• The Iowa Court did hold an Act permitting selection, by agreement, of a member of the bar to act as Judge of the Circuit Court to be un
The case of Van Slyke v. Insurance Company, 39 Wis., is further cited in support of the view stated by Judge Cooley. A statute of Wisconsin provided that a change of venue should be ordered whenever either party to a pending suit should file a petition showing prejudice entertained by the regular Judge, unless the parties, or their attorneys, should file with the clerk a written stipulation agreeing that some member of the bar should act as Judge in that case, and empowering such attorney so selected to act as Judge in the particular case. This course was pursued, the regular Judge “stipulated” off the bench, and the trial had before an attorney acting under this statute. On appeal by the losing party the constitutionality of the statute was assailed. The Court held it void, upon the ground that the Constitution of the State conferred judicial power only on Judges elected in the mode pointed out by the Constitution; that the Legislature could not confer judicial power upon other than constitutional Judges, and that the parties to a suit could not, by consent, confer power to act as a Judge upon one not designated by the Constitution.
All of this may be conceded. Consent will not make a Judge. If the Constitution prescribes.
“It is argued that this Act is unconstitutional, because a Judge cannot be appointed but' in the mode therein prescribed; that it is in contravention of this provision for the parties to make a Judge by agreement. But this Act does not authorize the parties to make a Judge, but only a person ‘to act as Judge’ in their particular case, in which the Judge of the cii’cuit is incompetent. If the provision had been that, in such cases, the parties might, by agreement, select some attorney to decide the case or to preside over twelve other*133 men, who should decide upon the' facts, under his instructions as to the law, could there be any objection? But if there was any thing in the name, he is not so entitled in the law, but only that he is to ‘act as Judge.’ That is, the powers that a Judge would have and exercise in the particular case, are conferred by agreement ‘of the parties upon the person thus selected. It can make no difference that the regular machinery of the Court is to be used in the case, under the direction of such person. It. is all by agreement; there is no compulsion. It is confined to a special case, in which the regular Judge cannot legally preside. It cannot affect the question that the case is to be tried and decided in the court-house, in term time, with a jury and Clerk and Sheriff. He is not a Judge, nor are gentlemen appointed to fill the place of one or more members of this Court who are incompetent, Judges; but they are, by the law, clothed with the same powers for the particular cases. They are to ‘act as Judges.’ They are to have the power and authority of Judges in the cases to be tried before them. Under this Act, the plain and easy mode of correcting errors may be resorted to which applies to ordinary cases. In this, ■ it is better for the parties than arbitrations.” Brogan v. Savage, 5 Sneed, 693.
Under the reasoning of this case, it is clear that the validity of the action of such an agreed Judge rests upon the consent of the parties. Without the Act the effect toould perhaps have been the same, pro-
The Code provision we have been considering applied only to cases where the regular Judge was incompetent.
In McCombs v. Guild, 9 Lea, 81, it appeared that the regular Judge was engaged upon other business, and therefore the parties agreed that >0. W. Heiskell,. with the consent of the parties, should act as special Judge, and his judgment be entered as the judgment of the Court, both parties reserving right of appeal. The bill of exceptions and the judgment of the Court were signed by the special “Judge. Judge Cooper thought thát no appeal could be taken from a judgment so rendered, but the other four members of the Court held that, in the absence of a motion to dismiss the appeal, this Court had obtained jurisdiction.
The Judge was not incompetent, and the reason for the sitting of Judge Heiskell appeared on the minutes of the Court. The judgment rested entirely upon the efficacy of the consent given to the action of the special Judge. Yet the judgment was not held void, the only question raised as to it being as to whether it was such a judgment as could _be appealed from. That the judgment of one “acting as Judge” by consent in a
Tbe cases of Glasgow v. State, 9 Bax., 485, and Neil v. State, 2 Lea, 675, are limited to prosecutions for crime. In tbe latter case Judge Cooper puts tbe reason of tbe rule upon tbe ground that “a person charged with a crime ought neither to be required nor permitted to select a Judge to try bis case.” Tbe same disability exists in regard to all tbe essentials of a criminal trial, tbe defendant not being bound by a waiver of any constitutional right. But in civil causes a different rule prevails.
Tbe Constitution expressly disqualifies and prohibits a Judge from sitting in any case in which be is interested, or related to the parties, or -in which be may have been of counsel. Judge Cooley’s views seem to be that these constitutional disqualifications cannot be- waived, and that tbe judgment would be void, although no objection was made. Con. Lim., side-page 413.
To support this opinion, be cites, with others, our own case of Reams v. Kearns, 5 Cold., 217. In that case, a Chancellor had pronounced a decree in ’ a cause in which he had been of counsel. This Court held the decree a nullity, although no objection appeared to have been made. The decision was in conflict with the earlier case of Wroe v. Greer, 2 Swan, 172, wherein the Court, through Judge Totten, said: “The objection for incompetency of the Justice should have been
Reams v. Kearns was followed in tbe subsequent cases of Smith v. Pearce, 6 Bax., 72, and Pierce v. Bowers, 8 Bax., 353. But in Crozier v. Goodwin advantage was sought to be taken, on appeal, of the fact that tbe Chairman of tbe County Court pronouncing the judgment was- incompetent, by reason of relationship. Without noticing Reams v. Kearns, or tbe two subsequent cases following it, this Court unanimously held that tbe incompetency was waived by failure to take objection in limine, Judge Ereeman, who spoke for the Court, saying: “ It would be monstrous to allow a party to acquiesce in tbe action of such a Coui’t without objection, and then, on appeal, show tbe fact as ground for reversal.” 1. Lea, 128.
In Holmes v. Eason, 8 Lea, 754, the Court approved tbe decisions in Wroe v. Greer and Crozier v. Goodwin, supra, and overruled Reams v. Kearns, Smith v. Pearce, and Pierce v. Bowers. In Posey v. Eaton, 9 Lea, 501, the ruling in Holmes v. Eason was approved unanimously. Tbe right to a trial by an. impartial Judge is a very high right, but these cases establish not only that one may consent
Consent did not make him a Judge, but it authorized him to “act as a Judge;” and if the Court with whom he sat consented to give effect to his opinion by adopting it, and rendering judgment in accordance with it, petitioners cannot complain. The judgment is not' void or voidable. ■
But upon another ground we reach the same result. We have heretofore treated the case as if a single Judge constituted the Court. The Constitution prescribes that this Court shall be composed of five Judges; yet the same instrument prescribes that the concurrence of three shall make a .constitutional judgment. The’ same number which may render a judgment constitute a quorum of the Court, and may sit as a Court in the absence of the minority.
"It appears from the judgment and minutes that the “ Court” sat and heard and decided this cause. The minutes show four of the regular members present and participating. Three of these were •competent to decide the case. All four appear to
In a late Pennsylvania case, it was urged that the judgment of a Court, composed of three members, was void, because the judgment was announced by a member of the Court whose commission had expired, and who was no longer a Judge. The Court of Appeals, upon consideration of this objection, said: “There is no doubt but that the Court was properly held by the associates. The rule had been argued before all the Judges, and certainly there was nothing either improper or unlawful in the enunciation of their opinions, either by the associates or by the former
The circumstance that one not a member of the Court participated in the hearing, consultation, and decision, when such person does so by consent of the Court and of the counsel in the case, cannot, and ought not, have the effect upon the judgment of a participation by one interested in the result. In the latter case the Court might regard the fact that the vote of such interested party was not vital as immaterial, in view of the impossibility of determining how far the influence of such interested person might have affected the result. The case of the Queen v. Justices of Hertfordshire, 6 Q. B., 753, was a case of this latter class, as was that of Oakey v. Aspinwell, 3 N. Y. But when the objection is, not that the disqualified person, joining with a Court of several in the hearing and determination of a cause, was himself interested in the result, but that he was without a commission, and it further appears that this participation was by consent of counsel and of the Court, the doctrine of the cases cited above has no application. The right to a trial before a full bench, or a bench exclusively of Judges in commission, are rights, but they are rights which may be waived. The entire Court concur in this opinion.
Petition dismissed.