10 Wis. 468 | Wis. | 1860
Lead Opinion
By the Court,
The only question involved in this case is, whether judgments can be legally entered by the clerks of the circuit and county courts, in vacation, in the cases provided in section 27, of chapter 132, of the Revised Statutes of 1858. This section is identical with section 158 of the Code of Procedure, as originally enacted in this state, with the exception of subdivision four, which was added by the revisors. On the part of the plaintiffs in error, it is contended that by these provisions an attempt' is made to transfer to the clerks a portion of the judicial power, which by section 2, of article 7, of the constitution, is vested alone in the courts therein provided for. If-this be true, there can be no doubt that these provisions are unconstitutional, and that judgments entered in pursuance of them are illegal and void.
The proposition of counsel, that “ the rendition of a judg
In Tallman vs. Tuesdell, Mr. Justice Smith, who delivered the opinion of the court, used the following language, in reference to section 17, of chapter 89, of the Revised Statutes of 1849 : “We are not aware that any authoritative construction has been given to this provision; but taken literally, it would seem to authorize the court or judge, at any time, whether in term or out, in case of default, to proceed to a final disposition of the case. The defendant having been regularly served with process, and time given him to plead answer or demur, failing to do either, dr interpose any objection to the plaintiff’s claim, is deemed to have admitted its correctness. The court or judge is then authorized to dispose of the case, either upon bill, or to require proof, or
The objections here made to it are purely technical. Upon such we cannot consent to disturb it. A proceeding thus recognized and established, should only be overturned for causes which reach its merits and justice. The reasons for sustaining it are numerous and weighty. The same motives of necessity which operated to introduce it originally, still exist, and in a greater degree. Our courts have quite enough to do in the management and conducting of real contraver-sies between parties litigant, without being troubled with the oversight and direction of matters about' which there is no dispute, and upon which there is no opportunity for the ex
Mr. Stephen, in his work, on pleading, on page 110, says : “Judgments, like the pleadings, were formerly pronounced in open court, and are still always supposed to be so. But by a relaxation of practice, there is now, in general, except in the case of an issue in law, no actual delivery of judgment, either in court or elsewhere. The plaintiff or defendant, when the cause is in such a state, that by the course of practice he is entitled .to a judgment, obtains the signature or allowance of the proper officer of the court, expressing, generally, that judgment is given in his favor; and this is called signing judgment, and stands in the place of its actual delivery by the judges themselves. And though supposed to be pronounced by the court, yet judgments are frequently signed in time of vacation, when the court is not sitting.” And again, in speaking of the entering of the judgment on record, he says : “And when judgment is signed, not after trial, but on demurrer, or as by default, confession, &c., there having been no record yet made up, the whole proceedings, to the judgment inclusive, are to be entered for the first time on a parchment roll. This proceeding is called entering the judgment.
Upon this theory, or supposition, the objection that these provisions transfer to or vest in the clerk judicial powers, is entirely removed. The judgment, though in fact entered by the clerk, is, in the consideration of the law, what it purports on its face to be: the act and determination of the court itself. Such having been the well known and understood practice at the common law, when the constitution was adopted, it cannot .for a moment be supposed that the framers intended by the provisions there inserted to abolish or change it. Nor do we think -that it is affected by the code. The intention of the legislature to retain the substance of the old proceedings, is plain enough. To be sure, the fiction, by which the record was made to appear as if the judgment was rendered as of the preceding term,' is gone, and the proceeding now appears what it really is, and always, in fact, was, a judgment rendered in vacation, when there is no court actually in session. Though not the judgment of the court, according to its legal sense or definition, yet to hasten the progress of business, and facilitate the ends of justice, it is to be regarded by the courts as such, and may be so regarded, as well without as with the fiction or supposition formerly resorted to.
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from the opinion of the court that a judgment entered in vacation by the clerk of a circuit court,without the sanction or intervention of any judi
The former practice and long acquiescence, therefore, so strongly relied on in the opinion of the cpurt, extend only to the support of such judgments. For the laws of the Terri
The decisions of this court referred to go no further than to sustain the judgments of judicial officers. And instead of sustaining the position that the action of such officers may be dispensed with entirely, and judgment rendered by a clerk, I think so far as they have any bearing at all on the question, they are decidedly the other way. Thus, in Holmes vs. Lewis, 2 Wis., 83, it was held that before the clerk could assess damages, “ there must be a judicial determination that the charge in the declaration is true.” The word “judicial” is italicised in the opinion, implying, very distinctly that the
In Tallman vs. Truesdell, the question was as to the power of the court of chancery to render a final judgment at special term. The power was very properly upheld, and in considering it, Justice Smith refers to anpther section of the statute,which, he says, “taken literally, would seem to authorize the court or judge, at any time, whether in term or out, in case of default, to proceed to a final disposition of the case.” This language is guarded, and by no means commits the judge to the position that even a judge might under that statute have rendered a final judgment in vacation. But even if it did, the position may be conceded, as I have already attempted to show, without furnishing any sanction to a law authorizing a clerk to render a similar judgment. I think, also, that the decision of this court, as to the necessity of a judgment on confession being signed under the old practice, tends to support my conclusion. Section 2, chap. 102, R. S., 1849, which required judgments to be signed was repealed by chap. 197, Laws of 1851, and judgments on confession were afterwards quite generally entered up with
The majority of the court admit that no part of the judicial power can be vested in a clerk, and they sustain the judgment in this case, upon the ground that it is not to be regarded as the judgment of the clerk but of the court. But I cannot see how this view can possibly be sustained. In the first place it does not purport to be .rendered by the court, and if it did, it appears to have been rendered at a time when the court was not in session, and, therefore, not in existence for the purpose of rendering a judgment.
In McDonald vs. Bunn, 3 Denio, 49, the court says, “ A judgment is the sentence of the law pronounced by the court. But the court can only be held in term time, and for the purpose of rendering judgments, it has no existence in vacation. Consequently a judgment cannot be .rendered in vacation; and evidence, although in form that of a record, which states that a judgment was rendered in .vacation, shows what could not possibly have occurred, and is, therefore, intrinsically null and void.” This it states to be the law, independent of the statute of 1840, in New York, allowing judgments to be entered in vacation.
In Hodges vs. Ward et al., 1 Tex., 244, it was held that a judgment rendered by a judge at chambers at a time when the court could not by law be held, was not and could not be the judgment of the court. In Shepherd et al. vs. Wilson, 1 Morris, Io. Rep., 448, it was held that a judgment entered at a time when the court could not by law be in session was a nulity. And this is unquestionably the general rule.
It seems to me clear that the statute under which this judgment was entered, required of the clerk an exercise of judicial power. That he not only entered, but rendered the judgment. It requires proof to be filed with him of the service of the summons, and that no answer has been received. He is therefore obliged to decide on the sufficiency of the service, and come to the judicial determination, that on the pleadings and proofs presented to him, the plaintiff is entitled to judgment. This is an exercise of judicial power. To see it more clearly, separate his action as a mere clerk from the other powers, and confer the latter on some different officer. Suppose the statute provided that the same proofs should be made to a notary public, and on his determination that there was a default and ordering judgment it should be entered by the clerk ; would not this be conferring judicial power on the notary ? It seems to me clearly so. And who could say that such a judgment could be considered as the judgment of the court? Yet the power may just as well be conferred on.a notary, as on the clerk.
The clerk must judge whether the court has jurisdiction of the cause also. Suppose an action in some of the county
It is undoubtedly true that the rules of the common law which'required most judicial matters to be transacted in term have been greatly changed. But it has been by statute, and at a comparatively recent period. Chitty Gen. Pr., vol. 3, chap. 3. Such has also been the case in New York. But though I have not examined with very great scrutiny, I apprehend there were no constitutional restrictions to interfere with the discretion of the legislature as to the vesting of the judicial power. Such at least is the view taken of the practice in New York, in a recent decision in Michigan. Chandler vs. Nash, 5 Mich., 409. The provisions of the constitution of Michigan in respect to the judicial power are substantially like ours. And it was held in that case that the legislature could not confer on a notary public power to dissolve an at-attachment. And the court distinguish their constitution from that of New York by remarking, that the latter contained no such limitation as to the judicial power, and refer to Sill vs. Corning, 15 N. Y. Rep., 300, where the majority of the court sustain a law establishing a court in a village, although such court was not among those provided for in the constitution upon the express ground that the constitution did not require the judicial power to be vested in the courts which it established. I think therefore that the question cannot be tested by the practice in New York or in England; which, even there, has been introduced by positive statute;
It is said that the objection is technical, and that it does not require the exercise of legal discrimination to enter a judgment on default, where the claim is confessed. This may be true, but to my mind it is a satisfactory answer to say that if the legislature may vest judicial power in the clerk as to those matters where the judicial action is very simple and easy, this will serve as a precedent to clothe him with those powers which are more difficult. If this judgment can be sustained, I can see no reason why- the legislature may-not extend the power so that the clerk may take the proofs and render the judgment in all those cases where specific relief is demanded as well as on a money claim. Indeed I see no stopping place. The objection is not so much to the evils of the practice as it is now allowed, as to the fact that it opens a passage through the provisions of the constitution, through which evils may enter.
I think within the case of Hodges vs. Ward, 1 Tex., 246, and Remington vs. Cummings, 5 Wis., 138, there was no judgment, and that the writ of error should be dismissed.
Note, — The Reporter, by mistake, ascribed to me the opinion in Blaikie vs. Griswold, ante, 293, which was in fact written by Justice Cole. I notice it here because, while I think there is no conflict between my conclusions in the foregoing opinion, and the points decided in that, there still is some oonflict in the reasoning of the two opinions. PAINE, J.