47 Iowa 155 | Iowa | 1877
Lead Opinion
On the 2d day of October, 1875, the term of office of Judge Chase having expired, the defendants filed a motion to refer the cause. The court sustained the motion, and appointed D. D. Chase, Esq., referee to hear the evidence in writing, and to hear, try and determine the cause, and report to the next term of court. In the month of March, 1876, in vacation, at the request of plaintiffs’ counsel, the clerk entered and copied upon page 209 of the record of the March Term, 1874, a decree in the cause establishing and confirming plaintiffs’ title, in effect, though not literally, the same as the paper found in said cause, signed by Judge Chase. On the 13th of April, 1876, the plain tiffs perfected an appeal from the order referring the cause. On the 23d day of October, 1876, the appellees filed in the District Court a motion to expunge said decree from the record, and served notice thereof returnable at the
The question is, was it proper to order a reference of the cause, when the files in the case showed that it had been -submitted to and fully determined by the judge of the court, and contained a full and formal decree, signed by him? • We mustpresumo that the judge intended that the decree, bearing his signature, should be entered upon the records, for this is the usual and proper course. That the clerk intended to so enter it is evidenced by the fact that the record contains the title of-the cause, followed by a blank space. Suppose, then, that Judge Chase’s term had not expired, and" the motion had been made before him for a reference and retrial of the cause. Would he have been justified in ordering a reference and reconsideration of the case? We think not. From the files of the case it would have appeared that the cause had been submitted and determined. Not only that, but it would also have fully and clearly shown precisely what the adjudication was. It would have appeared that, from some cause, a purely ministerial dtity had been omitted, and it would have been his province to have ordered that ministerial duty to be then performed. The fact that before the omission was discovered the term of the judge who tried the cause expired can make no difference. The court remained the same, though the incumbent of the office of judge was different. Such omissions as" this very frequently occur in the nisi prms courts, and it would involve inexplicable and interminable confusion if a decree in dne form, final and complete,'properly signed by the •judge and filed with the case, should be held to be a nullity, and to necessitate a retrial, simply because of the omission of the clerk to copy the decree into the proper record book. It frequently happens that upon the last day of a term a number of causes are determined, of which it is ■ impossible that the
We think the court should have ordered the clerk to spread upon the proper book a copy of the finding and decree signed by the judge, and that, in disregarding this finding and decree, and ordering a reference of the cause for trial anew, the court erred.
Reversed.
Concurrence Opinion
I concur in the result reached in this case, but I do so upon the following ground: The appellant’s abstract, if taken as showing all the facts, certainly entitles him to a reversal. It is conceded that the entry appears now to be regular. The facts upon which the appellee relies I do not think are shown to us in such, a way that we can take 'notice of them.