39 Wis. 390 | Wis. | 1876
Mere imputation of prejudice to the circuit judge, made in proper time by either party to a civil action, entitles the party making it to a change of the venue. Ch. 123, sec. 8, R. S.; ch. 206 of 1862. With a view, doubtless, of mitigating such inconvenience, ch. 69 of 1870 authorizes the parties to avoid change of the venue on that ground, by stipulating that a member of the bar of this court shall act as judge in the cause, with all the powers and duties of the circuit judge.
- Such a statute might work well. But we cannot consider
Tbe respondent petitioned tbe court below, representing tbe judge to be related to tbe parties and necessarily and insensibly prejudiced in tbe case, but not praying change of tbe
The parties thereupon filed a stipulation that Mr. Cole, a member of the bar of this court, should act as judge on the trial of the cause; and the court below made an order, reciting the petition for prejudice, and ordering the cause to he tried before Mr. Cole as judge of the court, in accordance with the statute.
The trial appears to have taken place before Mr. Cole and a jury, who found for the respondent. There is in the record what purports to be a bill of exceptions and an order refusing a new trial, signed by Mr. Cole. The judgment is signed by the clerk, with a statement at its head that Mr. Cole sat as judge on the trial.
We cannot look into the bill of exceptions or consider the order denying a new trial, because both are unofficial and devoid of judicial authority. They are as any other irrelevant papers finding their way by accident or mistake into the record of a cause. And the only question for us is, whether we should hold the judgment supported by a presumption that it rests upon a proper trial of the issue, or should consider it as rendered by Mr. Cole, and therefore not properly the judgment of the court below.
We cannot doubt that the latter is the proper view. All judgments are by the consideration of the court. Judieia in deliber ationibus matmrescu/nt. The judicial mind goes to all judgments, either by particular consideration or by general consideration established by rule. There must be actual or constructive consideration of the judge of the court. Judi-cmm est quasi jv/ris dictum. And it is the voice of the judge 'only which is the voice of the law. Judex est lex loquens. And we cannot close our eyes to the truth so patent in this record, that, in compliance with the statute before us, the learned judge of the court below abdicated his judicial office
Tbis pbrase is commonly applied directly to tbe court itself. But it applies, in its proper sense, to a court not having jurisdiction of a matter, pnly because tbe judge is, quoad hoc, not a judge. And tbe judge de jure et de facto of a court not having jurisdiction of a cause in it, is, for tbat cause, like a private person assuming to exercise judicial functions over it. “ When tbe court has not jurisdiction of tbe cause, there tbe whole proceeding is coram non judice, .... and therefore tbe said rule .... qui jussio judicii aViquod fecerit (but when be has no jurisdiction, non est judex) non videtur dolo malo fecisse, quia qqarere necesse est, was well allowed, but it is not of necessity to obey him who is not judge of the cause, no more than it is a mere stranger, for tbe rule is, judicúum a non suo judice datum nullvas est momenhi.” Marshalsea case, 10 Rep., 68 b, 76 a; cited and approved in Taylor v. Clemson, 2 Ad. & E., N. S., 978. “ It is tbe same as though there was no court. It is coram non judice.” Grumon v. Raymond, 1 Conn., 40. So, because tbe jurisdiction of a court can be exercised only by tbe judge defacto of tbe court, tbe judge of a court not having jurisdiction is likened to a stranger assuming to exercise tbe jurisdiction of a court having it; tbe proceeding in both cases being coram non judice. Tbe rule as given in Fleta, following Bracton, appplies very closely to tbisjcase. It is there said, in substance, tbat no one can proceed judicially to whom regular jurisdiction has not
There is a quaint relish of poetry in the way of putting the sovereign delegation of judicial function in Martin v. Marshall, Hob., 63. “All kingdoms in their constitution are with the power of justice, both according to the rule of law and equity; both which, being in the king as sovereign, were after settled in several courts; as the light, being first made by God, was after settled in the great bodies, the sun and
We do not forget that this court has upheld the judgments of judges de facto, not de jure, in Re Boyle, 9 Wis., 264; State v. Bloom, 17 id., 521; Laver v. McGlachlin, 28 id., 364. But in all these cases the person acting as judge held the office under color of title. So the court says in Re Boyle: “ Every person assuming to exercise the authority of an officer, does not thereby necessarily make himself an officer de facto. But when it appears that the person exercising the powers of
The judgment plainly proceeded upon a mistrial, which cannot support it; and the judgment itself is plainly not a proper judgment of the court below. "Whether void or voidable, it should be reversed. Sayles v. Davis, 20 Wis., 302; Hays v. Lewis, 21 id., 663.
By the Court. — The judgment of the court below is reversed, and the cause remanded for trial according to law.
Nullus smum’ potest cui jurisdictio ordinaria per ipsum Beg’ non delega-tur, nec alius cokertionem com’ habebit, nec contumaciam puniré poterit quis nisi ipse cui datur judie’ authoritas et non per judicem delegatum sed per ipsum Beg’; Praetor enim judie’ sibi non poterit subdelegare, quia sententise talih nullius sunt effectus.