LIFE AND FIRE INS. COMPANY OF NEW YORK v. WILSON'S HEIRS

The case was argued by Mr Selden and Mr Jones, for the plaintiffs; and by Mr Coxe and Mr Porter, for the defendants.

The opinion of the court was given upon no other question argued by counsel, but the right of the judge to refuse to sign the judgment.

Upon this question, it was contended, on the part of the plaintiffs, that the signing of the judgment was a ministerial, and not a judicial act.

The signing is not of the essence of the judgment. It is a mere formality, not required at common law. It was not required by the Spanish law. That law required, that it should be rendered by day, in a judicial proceeding in a proper place, after the parties were cited or had appeared; and that it should be written in the records, and read publicly. V. Partida, 3d tit. 22, i. 5. After it was pronounced, the judge could not alter it except during the day on which it was rendered. Ibid. law 3, 1 Morcau and Carleton's translation, p. 264 — 5

The statute, (commonly called the practice act, which by the act of congress of 26th May 1824, adopting the practice of the state courts, regulates the practice of the United States courts in Louisiana) which contains the provision requiring judgments to be signed, is of the 10th April 1805 (5 Martin's Digest 164); and is not to be found in Morcau's Digest. The code of practice has changed the course of proceeding in the state courts; but that code is not observed in the district court of the United States: it was enacted on the 2d October 1825, since the act of congress regulating the practice of the United States courts in Louisiana. The inquiry, then, is to be directed to the laws in force previous to the adoption of the code of practice. The statute of 10th April 1805, follows the Spanish law, and requires all judgments to be pronounced in open court, entered on the minutes, and three days thereafter, signed — not by the judge who rendeted them — but by the presiding judge of the court; provided they should not be set aside by motion for a new trial. This statute, in the same section, requires judgments to be docketed, and in the next (5 Martin's Dig. 166) provides that no execution shall issue on any judgment not docketed in form aforesaid. Will any one contend, that the docketing is of the essence of the judgment? It is required in the same manner as the signing is; and it is clear that they are both purely ministerial acts, — the rendition of the judgment, and the hearing of the motion for a new trial within the three days, being judicial acts, and after the three days the judgment is then perfect in all its essential parts, and is to be completed in its formalities by being signed and docketed.

The present application is not an attempt to control the discretion of the judge. Under this Louisiana act one of three things must be done:- the judge must grant a new trial — arrest the judgment — or sign it. If he cannot arrest the judgment, and will not grant a new trial, the only other alternative is to sign the judgment. If no application be made for a new trial within three days, it is then the duty of the judge to perfect the judgment, and the right of the party to have it perfected. No exercise of judicial functions is afterwards required, and it only remains for the judge to do the mere ministerial act of signing the judgment, which the parties, by omitting to apply for a new trial, have tacitly admitted must be carried into effect.

No application was ever made for a new trial. Indeed, on what ground could it be asked for or granted on a judgment confessed with a stay of execution? Could it have been, judge Robinson lived long enough for the application to have been made to him. He lived three terms after the confession of judgment. The case comes then before the court as one in which no application was made for a new trial to the only judge who, according to the argument, could grant it, and in which the defendants did not desire to have a new trial.

Though the discretion of a judge will not be controlled, and though a mandamus will not go to compel him to decide in a particular way, it will go to make him decide so that a writ of error may be had.

A mandamus lies to compel the signing of a bill of exceptions by the circuit court. Crane and another, 5 Peters's Rep. 190. In 1 Stra. 42, 93, 211, is the case of a mandamus to a judge of probates to grant to the next of kin; though it is a judicial act to grant it, a mandamus lies to compel the grant to the next of kin in preference to any other. So it lies to compel a court to proceed to judgment. As in the People v. The Justices of Sessions of Chenango, 1 John. Ca. 179; Turner v. Haight, 2 John. Rep. 371; Smith v. Jackson, I Paine's Rep. 453. Also to admit a deed to record, which is a mere ministerial act of the court. Dawson v. Thruston, 2 Hen. and Munf. 132. At the last term of the supreme court, in Ex parte Bradstreet, 7 Peters's Rep. 635, the district judge was ordered to reinstate the causes, make up the records, try the causes, and enter judgment, in order to give the demandant the benefit of a writ of error. The words of a statute of West. 2, (13 Ed. 1) ch. 31, which requires the signing of the bill of exceptions, are not more imperative than are those of this Louisiana act: "if the party write the exception, and pray that the justices may put their seals to it for a testimony, the justices shall put their seals, and if one will not another shall." By the act of congress of May 26th, 1790, ch. 38, the "presiding magistrate" is required to certify the proceedings of the court so as to make them evidence in other courts. Could he refuse? And would there be any greater interference with judicial discretion in granting the application at bar than there is in the instances here enumerated?

It is not required by the Louisiana statute, that the judge who rendered the judgment should-sign it. Had such been the provision of the statute, an impossibility might have been required. The judge who tried the cause might die within the three days, or he might resign, or be displaced before the signing of the judgment. Could his successor, on general principles, in any of these cases, refuse to sign it, after the lapse of the three days? The judgment is the act of the court, and not merely of the individual judge. A court never dies. It will see that its judgments are completed and carried into effect. It is the duty of the successor to perfect and carry into effect all acts begun by his predecessor, and pending in the court at the time of his appointment.

And let it not be lost sight of, that no law or decision of Louisiana can be produced requiring the judge rendering the judgment to sign it. Judge Harper, in his reasons, cites a section of an act of 1817. But that section makes no change in the act of 1805, as to the formality of signing the judgment, and the judge by whom that act may be done. The requisition of the statute is not, that "the judge rendering a judgment must remain long enough at the place of holding the court in order to sign it;" but that he shall remain three days after pronouncing judgment to hear motions for new trials:- the words are, "that seven judicial days from that on which a final judgment shall have been rendered, shall be allowed to make a motion for a new trial in the district court for the first district, and the parish court of New Orleans, and that until then the judgment shall not be signed by the judge; and that in all the other district courts of the state, the motion shall be made and the judgment signed within three judicial days only, and for that purpose it shall be the duty of the judges of the district courts to sit three days longer after the last cause which they shall have determined in each term." The judge who tried the cause must remain the three days to hear motions for new trials, because no judge can hear such a motion who has not heard the cause, and because this is a judicial act and not a ministerial act.

It is not necessary that the judgment should be signed on the third day: it may be signed afterwards. This is decided in Thompson v. Chretien et al. 12 Martin's Rep. 250 (1822). There were other questions in that cause; but one was, whether the judge must not sign the judgment on the third day, and whether it is not void if signed afterwards. The court say: "the object of the legislature in the section quoted from 2 Mart. Dig. 164, was to afford the party a delay of three days to state his objections, and for this purpose prohibited the judge to give effect to it by his signature till the expiration of that delay. It is not intended to require the judge's signature on that day." In that case, the judgment was not signed till several days after its rendition.

There was no occasion for urgency in signing this particular judgment. It was confessed in May 1826, with a stay of execution till the 18th January 1829 — very nearly three years. No execution could be issued till then. Why sign the judgment before? Signing virtually authorises an execution to issue. Of what use would signing be until the stay expired and an execution was wanted? Inadvertently omitted as it was, still the application for this formal act to be done, would seem to be in full time, when execution was necessary, and the parties had become entitled to it.

Judge Harper's refusal to perfect the judgment, renders the condition of plaintiffs and defendants unequal. Had he signed it, the defendants could have brought a writ of error, and obtained a review of the question, whether he, as the successor of judge Robertson, was bound to sign the judgment, and also of the alleged irregularities. But the plaintiffs, by such refusal, are deprived not only of all remedy and benefit under their judgment in the court below, but also of the right of suing out a writ of error to this court. The district judge ought either to have signed the judgment, and put the defendants to a writ of error, or arrested the judgment, and afforded the plaintiffs the opportunity of suing out such writ — a right of which they ought not to be deprived.

This is not a question of practice. There are no precedents on the subject. The death of the judge has occasioned the difficulty; and judges so seldom die, that there is no jurisprudence yet formed in relation to their demise. It is a question of law depending upon the statute and the ancient jurisprudence of Louisiana, and is simply this: Is or not the signing of a judgment, after the delays for granting a new trial have expired, a judicial or simply a ministerial act? The signing by the judge who rendered the judgment is not required by any law of Louisiana. It is not of the essence of the judgment, but is a mere formality, which does not affect its substantial properties and force.

Upon the whole, it is submitted that judge Harper ought to have signed this judgment. The act is merely ministerial. On general principles, as the successor of judge Robertson, he was bound to complete the judgment. So under the Louisiana act of 1805. There is not only nothing in that act which requires the judge who presided at the confession of the judgment to sign it, but by its express provisions, the signing is required to be by the presiding judge of the court, — presiding at the time the application to sign should be made; — words used, no doubt, to avoid the difficulty which would arise from the death, resignation or removal of the judge who presided at the trial.

Mr Coxe and Mr Porter contended, that this was not a case in which a judge was called upon to do an act merely ministerial. The district judge has given the facts and reasons which operated on him, judicially, to refuse his signature to the judgment. They are briefly these. The first fact on which he relies is the laches of the plaintiffs. He states that, from the records of the court, it appears that judge Robertson held three terms of the court after the entry of the judgment, and did not die until more than two years after. He next adverts to the state law, which requires that to render a judgment valid, it must be signed within a certain number of days, unless set aside. He states that this has been the invariable practice of the court of the United States, in Louisiana; and he draws the inevitable consequences from the neglect of the plaintiffs in obtaining this signature, that they were conscious of the existence of good causes that would have induced judge Robertson to refuse signing it. He states positively, that the same attorneys who instituted the suit, have subsequently, in the same court, instituted new suits, in the name of assignees of the original plaintiffs, against the same defendants, for the same cause of action. This alone would be sufficient to prevent his acting.

The signing of the judgment has been improperly called a ministerial act, a mere formality — it is neither.

Whatever a judge may do, or may refuse to do, according to the circumstances of the case, is a judicial act. Here, after a judge has pronounced his opinion in open court, and had it entered on the minutes, he may refuse to perfect it, if he sees that injustice has been done, and order a new trial; or he may arrest the judgment for such radical errors in the proceedings as show that no valid judgment can be founded on them. Ordering the judge to sign this judgment would be directing him what judgment to render; for it would be saying, You shall not grant a new trial; you shall not a rest the judgment; but you must confirm it. Now this is contrary to an express decision of this court, in the case of the United States v. Lawrence, 3 Dallas 42.

In his reasons the judge remarks with some force on the injustice of forcing him by a process of this kind to decide a case on evidence which had not been offered to him, but to another; which (if the argument to show that this is a judgment, not a ministerial act, be correct) would be conclusive against the motion. Ought he not to be permitted to look into the proceedings? to see whether the defendant has appeared? whether he has been cited? whether the court has jurisdiction of the case; whether the party who appears by attorney is not stated to be an infant? to examine, in short, whether the proceedings are in legal form? Should any hardship on the part of the plaintiffs be urged, the answer is ready. Whatever of inconvenience exists, is of the plaintiffs' own creation; the delay has been produced by their own negligence; or worse, by their desire to overreach — and they are not without remedy. A new action, avoiding all the irregularities of this, would have produced a decision on the merits, in less time, and at less expense, than by this application; at the same time that the mortgage, if it be a legal one, binds all the property as effectually as a judgment, and carries back the lien to an earlier date. Authorities to show that the signature of the judgment is necessary, need scarcely be produced. For the satisfaction of the court, however, the following statutory provisions are referred to. 1 Acts of the Territory of Orleans, p. 234, sec. 13; 2 Martin's Digest, 164, No. 11; Acts of 1817, p. 32, sec. 11. All these acts may be found in Leslet's Digest, Code of Practice, 546.

The act required of the judge of the district by the mandamus, was entirely judicial. He had refused to sign the judgment, and had given his reasons for the same, and he is now to reverse this judgment.

A mandamus is not the proper remedy. It is never issued when the act required to be done under it is other than ministerial: it is properly to be directed to the judge, and not to the court; and in this case it is judicially known that the court is composed of but one judge.

There was no judgment rendered by judge Robertson. The case was not, therefore, judicially disposed of before his death; and the present judge, before he can sign the judgment, must examine the record. This was done by him, and he judicially decided that he could not sign the record. This is conclusive; if the judge is any thing more than a mere clerk to perfect the record.

What acts of a judge are ministerial? They are all judicial. Does this court act ministerially in any case, or on any occasion?

The law of Louisiana requires the judge to remain three days at the place where the court is held, before he signs the judgment, which affords an opportunity to examine if there are any reasons for a new trial. But in this case no opportunity for a new trial can be allowed, if the duty of the judge is absolute, if he must sign the judgment. The law does not require that a new trial shall be asked in three days; if it is not asked in that time, and judgment has not been signed, the case is open for the application.

Upon the authority of the civil code of Louisiana, the judge may order a new trial up to the time of signing the judgment. And in this case a new trial could have been given by the judge of the district court, if he had been required to grant it. No application was before him for any purpose but to obtain his signature to the judgment. The proceedings in this case are evidently defective, as it is admitted the minors, heirs of Nicholas Wilson, had not notice of the application for signing the judgment.

Mr Jones, in reply, contended, that after the judgment had been entered on the minutes, as the oral judgment of judge Robertson, the proceedings to complete the record were mere matters of form. In this case, particularly, the form of signing was all that was necessary, for the party had made no application for a new trial. The state of the record was such, as that the judge could sign the judgment; as is done when a warrant of attorney is given, which fully authorises the entry of judgment. Judges frequently act ministerially. The certificate to a record, and the signature of a judge in allowing a writ of error, are ministerial acts.

There is no force in the objection, that as the present judge did not sit on the trial of this cause, he cannot grant a new trial. It often occurs that new trials are moved for and granted by other judges than those before whom the cases have been tried. New trials are moved for "in bank," before all the court: trials take place at nisi prius before a single judge.