61 Miss. 228 | Miss. | 1883
delivered the opinion of the court.
This case was at the July term, 1880, of the Circuit Court of Leflore County, submitted by counsel to the Hon. W. A. Cothran, presiding judge of said circuit, to be by him tried and decided without the intervention of a jury. He heard the evidence and took the case under advisement, carrying the papers with him to his home in another county. Two months thereafter, and during vacation, he returned the papers in a box to the circuit court clerk of Leflore County, and with them was found an elaborate opinion disposing of all the points in the case, closing with a carefully drawn judgment in favor of the plaintiffs, all in his handwriting and signed by him.
A few days thereafter, and before the time fixed by law for the next term of the Circuit Court of Leflore County, Judge Cothran died, and the Hon. C. H. Campbell was appointed and qualified as his successor.
At the next term of the court a motion was made by plaintiffs to have the judgment, which had been written out by Judge Cothran and found among the papers, entered as the judgment of the
The fact that the judgment, written out by Judge Cothran, was transmitted with the papers to the clerk, was of no more significance than if it had remained in the judge’s private residence, and been there found after his death; and it is evident that without some statute there can be no authority in a judge to pronounce a judgment in vacation. The rendition of a judgment is the highest of judicial acts, and belongs to a court, and not to the person of the judge; nor is this principle changed by our statute, § 1707 of the Code of 1880, by which judges are authorized to take cases under advisement. It distinctly declares that “at the next term the judge shall deliver his opinion in writing,” and it is only after this that the judgment can be entered. Until this has been done, and even after it has been done, and until the close of the term, the case remains entirely within the control of the judge, who may at any time enter a judgment directly the reverse of the one written out by him during vacation. So in the present case we cannot say that if Judge Cothran had lived he might not ultimately have decided the case in favor of defendants.
Inasmuch, however, as he did not do so, and as Judge Campbell did enter the present judgment, it is argued by counsel that it must be considered as the judgment of the court.
The argument is that the submission of the cause'was to the court, and not the particular judge, and hence when a judgment has been entered it must be treated as the judicial act by the court as then constituted. Such a conclusion, if it could be indulged from the record, would seem unfair, since it rests upon the assumption that the parties, when the submission took place, were willing to dispense with a jury and leave the case to be decided by any judge that might thereafter occupy the bench, which would, in many cases, be directly the reverse of the truth. It is affirmatively shown, however, that no such thing as this occurred in the present case. The bill of exceptions plainly shows that Judge Campbell gave no judgment whatever, but on the contrary simply entered the judgmentwritten out by his predecessor, treating itasamtiieprotaeorder.
It follows, therefore, that no valid judgment has as yet been pronounced in the circuit court, and hence that this court is without jurisdiction.
Judgment vacated and cause remanded with order for a trial and judgment there.
