State ex rel. Barber v. McBain

102 Wis. 431 | Wis. | 1899

Dodge, J.

Appellant apparently makes three contentions: First, that the direction of the court given on December 30th made it the duty of the clerk to enter on the record a final adjournment upon January 1st; second, that the statute (sec. 2513, E. S. 1818) made it the duty, of the clerk, upon nonappearance of the judge either on December 31st or January 1st, to enter daily adjournments for three days, and then to finally adjourn the term; third, that by failure of the court to adjourn to a specific time the term came to an end. Without stopping now to discuss whether any, and, if so, what, of these contentions, if sustained, would support the relief prayed, namely, mcmdamus commanding the clerk to enter and record a final adjournment on some date prior to January 18th, we will consider these several positions.

1. The petition, with the attached affidavits made part thereof, does not support appellant’s first contention, as a fact. The utmost force that can be given to Judge Bailey’;? own statement of what transpired only establishes that the clerk was instructed to make entry holding the court open for the ensuing two days, with the expectation that the court would then be present, accompanied by a declaration that the judge on December 30th had a purpose to finally adjourn the term on January 1st. Final adjournment is a judicial act, requiring the presence of the court to perform; and, as the court was not sitting on the 1st of January, such judicial act could not have been performed. Many of the authorities hold that power to perform such act cannot be delegated to the clerk; so that, even had Judge Baxley on December 30th definitely instructed the clerk to finally adjourn the term on January 1st, it would not have been effective to authorize such act. In re Terrill, 52 Kan. 29; In re McClaskey, 2 Okl. 568.

2. The second contention of appellant also fails of support in the facts alleged Sec. 2573, of course enacted for the purpose of preventing the failure of a term, confers power on the clerk only to enter a final adjournment, first, when the judge fails to attend at the time fixed by law for holding the term of court and for three days thereafter, and, secondly when he so fails to attend on a day during the term which has been fixed by an adjournment thereto. Neither of these conditions is here present. The court had not adjourned to a specific day, but had merely made an order, now become entirely customary with our courts and with the courts of the United States, that the term be “ held open,” the effect of which is merely that the adjournment is to a time to be fixed in the future according to the exigencies of business. East Tenn. I. & C. Co. v. Wiggin, 68 Fed. Rep. 446; Harrison v. German-Am. F. Ins. Co. 90 Fed. Rep. 758, 762. This statutory power of the clerk to thus exercise the judicial function in putting an end to the existence of the court until the next term is an extreme one, and is to be exercised only within the exact conditions prescribed by the statute, which clearly contemplates a situation analogous to the commencement of a term by law, and a similar failure of the judge to be present at an appointed time, in order to confer this authority on the clerk.

3. The proposition that, unless a term of court is kept alive by adjournment from one day to another, the court goes down for that term and can have no business existence again until revived by the commencement of a new term, is expressly negatived in Wisconsin by sec. 2572, which provides that no omission to adjourn from day to day, previous to final adjournment, shall vitiate any proceedings in such court. The same conclusion has been reached by other courts without such legislation. Schofield v. Horse Springs C. Co. 65 Fed. Rep. 433; People v. Sullivan, 115 N. Y. 185; In re Dossett, 2 Okl. 369. According to modern policy and methods, a term of court, having been duly commenced, continues until the court itself, by an affirmative judicial act, terminates it, or until the next term. Freeman, Judgments, § 90; Hume v. Bowie, 148 U. S. 245; Schofield v. Horse Springs C. Co., supra; Union Pacific R. Co. v. Hand, 7 Kan. 380. In deference to modern methods of business in, court, involving in many jurisdictions the combination of equitable and legal proceedings, the term of court has come to mean a period of time within which there may be many sessions, while anciently it meant a single session, indeed, originally, a single day, which in order to meet the demands of business was enlarged in fact to several, although in theory the single day extended over the whole sitting. No state has gone farther than Wisconsin in its legislation to indicate a policy of vesting in its courts complete discretion and control over the, times and methods of conducting their business, and of relieving them from technical restrictions thereon. Secs. 2422a, 2427, 2428, 2429, 2572, 2573, Stats. 1898, and many others, evince such policy;-and it may safely be said that between the legal commencement of the term, and the time when it is expressly terminated by a judicial determination or by the commencement of a new term, the power of the court over the time when, and the manner in which, business before it shall be conducted, is complete (Barrett v. State, 1 Wis. 175; Green v. Morse [Neb.], 77 N. W. Rep. 925), with only the limitation that if such power is abused to the prejudice of a litigant error may be predicated thereon and may be reviewed and corrected.

The petition does not show that the December term of the Eau Olaire circuit court had been finally adjourned, either by the court, or by the clerk under circumstances authorizing him to do so; and for that reason, without considering others, the action of the court in quashing the alternative writ was proper.

By the Oowrt.— Order quashing alternative writ of mandamus is affirmed.