Branger and Driard v. Chevalier.

BRANGER AND DRIARD v. CHEVALIER.

A Judge can revoke his certificate, to a settled statement on appeal, during the term at which the judgment was rendered; but after the term has expired it cannot be done. While the term lasts, the Court has power to amend the record. After the term has passed, the record cannot be amended unless there is something in the record to amend by. The settled statement, until certified, is not record. Where the Judge of the Superior Court certified to an engrossed statement, and subsequently revoked his certificate and ordered the statement to be made conformable to this latter settlement, which order was not entered on record; and the Judge of the Fourth District Court, to which the cause was transferred, ordered that the order of revocation and amendment be entered nune pro tunc, there being no record evidence on which to base such an order: Held, to be error.

THIS WAS A MOTION to set aside the submission of the case to this Court, and also the record filed herein.

The facts appear in the opinion of the Court.

P. W. Shepard for Plaintiffs.

N. Hubert for Defendants.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

Motion to set aside the submission of the case and the record. This case was tried in the Court below, and the statement settled by the referee appointed by the Court for that purpose, and the statement as settled, ordered to be engrossed. When engrossed by the attorney of appellant, it was certified to be correct by the Judge of the Superior Court, and filed with the Clerk. The counsel for respondent afterwards moved the Court to strike the engrossed statement from the record, for the reason that it was untrue and contained matters not included in the settled statement. On the hearing of the motion, the Judge revoked his certificate to the engrossed statement, and ordered that the statement should be made conformable to the settled statement. This order was not entered in the record, nor is it certain that it was in writing; but if in writing, it was lost or mislaid. The Judge of the Fourth District Court, after the cases pending in the Superior Court had been transferred to that Court under the provisions of the Act of the Legislature, made an order directing the order made by the Judge of the Superior Court revoking his certificate to the correctness of the statement, to be entered nunc pro tunc.

The first question presented is, whether the Judge can afterwards set aside or revoke his certificate to the correctness of the statement.

Wicks v. Ludwig.

We think that he may do so during the term of the Court at which the judgment was rendered. But after the time has expired, it cannot be done. The statement, when filed, becomes a matter of record. While the term lasts, the Court has power to amend the record. After the term has passed, the record cannot be amended, unless there is something in the record to amend by. The settled statement, until certified, is not record. The second question is, whether the order of the Fourth District Court was proper. The only evidence of the order made by the Judge of the Superior Court, revoking his certificate to the correctness of the engrossed statement, was found in the recollection of the Judge, and of the counsel. This was not sufficient. Had the order been made in writing and signed by the Judge, and simply omitted to be entered on the minutes, then the order nunc pro tune would have been proper.

The correct rule would seem to be this: That during the term the record may be amended in any manner so as to be made conformable to the facts. But when the term is past, it can only be amended in cases where the record itself shows the error. In such case there must be record evidence to amend by. (3 Cal. R., 255; 7 Marshall's Ky. R., 237.)

For these reasons the motion is denied.

WICKS et al. v. LUDWIG et al.

It is essential to the validity of a judgment that it be rendered by a Court of competent jurisdiction, at the time and place, and in the form prescribed by law. Where the parties stipulate to try a case before the judge in vacation, and that the judgment shall be entered as if tried at the regular term, and judgment is so rendered, such judgment is a nullity.

No trial can be had or judgment entered, except in term time.

APPEAL from the District Court of the Fifteenth Judicial District, County of Trinity.

This was an action of trespass to recover damages for injuries done by defendants, by cutting away a dam, ditch, and flume, constructed for mining purposes, and the property of plaintiffs.

The defendants, in their answer, among other matters, plead and set up as a bar to this action, a former judgment of the District Court of Trinity county rendered herein, and aver that Ed. Neblett, as sheriff of said county, together with the other defendants, by virtue of a writ of restitution issued on said judgment, diverted the water from the ditch of plaintiffs to that of

Wicks v. Ludwig.

defendants; and all of their said acts were in obedience to the commands of said writ, etc.

On the trial, it appeared that said judgment was rendered under and by virtue of a stipulation of the parties, that the Judge of said District Court should hear and try said case in vacation, and that his judgment should be rendered as the judgment of the Court, and should have the same effect as though the case were decided by the Supreme Court.

Upon this showing, the District Court gave judgment for the defendants, from which the plaintiffs appealed to this Court.

P. L. Edwards for Appellants.

The judgment put in evidence by the defendants is an entire nullity. It was not rendered by any Court of competent jurisdiction. In fact, it was not rendered by any Court at all; for the Court had adjourned its term until the next regular term, and in the interval, the Judge had no more jurisdiction for the purposes of a trial and judgment than any other citizen. The stipulation to try the case in vacation does not relieve the respondents. Consent may waive or cure error, but can never give jurisdiction. The agreement was not for a submission to arbitrators, but for a trial before the Court, and by a jury. It is incontrovertible there was no Court, no legal jury, no judgment. Gormond and another v. The People, 1 Hill's N. Y., 343; Wians & Lawrence v. Underwood, 1 Texas, 48; Doss v. Waggoner, 3 Texas, 515; 3 J. J. Marshall, 299.

Upton & Hereford for Respondents.

The judgment offered in evidence, so far from being a nullity, appears by the record to be a judgment of the District Court, rendered in a cause regularly before it, by complaint and answer, showing a subject-matter within its jurisdiction, and the parties plaintiff and defendant in Court.

Whether the Court committed an error in the course of the trial of that case is a question that can only be determined in that case upon appeal. It cannot be reviewed in the trial of this cause. 5 Wend., 190; 1 Hill, 118.

When a Court has once acquired jurisdiction, its proceedings will be presumed regular, unless the contrary be affirmatively shown, and the record of the Court cannot be attacked collaterally.

If this were a proper subject of review in this case, there is no evidence, except what may be inferred from the stipulation, to show that the trial was not had during a term. The record shows that there was a Court in session, and there is nothing before this Court to impeach this record. It not appearing affirmatively that the trial was had, or the judgment rendered in pursuance of the stipulation, nor that the regular term had been

Wicks v. Ludwig.

adjourned, there is not enough before this Court to show even error, much less a want of jurisdiction.

The writ under which the defendants acted, was regular on its face, and the writ alone is a sufficient defence in an action of trespass. 10 John., 138.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring.

The record offered by defendants to support their plea of former judgment was improperly admitted in evidence; that which on its face purported to be the judgment of a competent Court is shown, by the finding and agreed statement, to have been a judgment entered in vacation, upon a trial had by stipu lation before the judge and a jury after the adjournment of the Court for the term.

It is absolutely essential to the validity of a judgment that it be rendered by a Court of competent jurisdiction, at the time and place, and in the form prescribed by law. Jurisdiction, in certain cases, is given by our Constitution and laws to the District Courts, which are required to hold regular terms for the trial of causes, commencing at a day fixed, and adjourning from time to time, until the business of the term is disposed of, or the time for holding another term in the same district has arrived. No trial can be had or judgment entered, except in term time. (Smith v. Chichester, 1 Cal., 409.)

It is said that the judgment, being on its face regular, could not be attacked collaterally; but the party aggrieved must pursue his remedy by appeal. Appeals can be taken only from the judgments of a Court; here there is no judgment of any tribunal having jurisdiction; the proceeding was a mere nullity. "There was, in fact, no Court in session, and no judgment could, by law, have been pronounced; and, consequently, it is not only a nullity, in the ordinary signification of the term, when applied to judgments of Courts having no jurisdiction over the subjectmatter or the parties, but it is not even the act of a Court, and is therefore not susceptible of appeal, or the subject of revision in an appellate tribunal." (Doss v. Waggoner, 3 Texas, 515.) Judgment reversed, and cause remanded.

Rice v. Chauncey-Wetzlar v. North-West Ice Co.

RICE v. CHAUNCEY et al.

APPEAL from the District Court of the Fifteenth Judicial District, County of Trinity.

Latham & Sunderland for Appellants.

P. L. Edwards for Respondent.

BURNETT, J., delivered the opinion of the Court―TERRY, C. J., concurring.

This was a bill in chancery to close up a partnership, for the sale of partnership property, and a distribution of the proceeds. The case was, by agreement, referred to a sole referee, who reported the evidence, his findings upon the testimony and a decree. This report was confirmed, and a decree rendered by the District Court in conformity with the report, and the defendants appealed.

The main point relied upon by the defendants is, that the finding of the referee was against the evidence. We have examined the testimony, and we can see no sufficient ground for disturbing the decree of the District Court. The other points in the case are not material.

Judgment affirmed.

WETZLAR v. THE NORTH-WEST ICE COMPANY.

APPEAL from the District Court of the Sixth Judicial District, Sacramento County.

Winans for Appellant.

Robinson, Beatty & Botts, for Respondents.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring.

The evidence in this case was not sufficient to warrant the verdict of the jury, and a new trial was properly granted. Judgment affirmed.