Gere v. Weed ( 1859 )


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  • By the Court

    — Elandrau, J.

    The Legislature, in pursuance of the power contained in Section 15 of Article 6 of the Constitution of the State, by act of August 4th, 1858, conferred the powers of Court Commissioner upon the Judges of Probate in the several counties where such officers shall possess the requisite legal qualifications. This invests them, besides the powers specially enumerated in the act, with the powers of a Judge of the District Court at Chambers. Dnder this grant *357of judicial authority, many of the Court Commissioners have assumed the most extended jurisdiction; hearing and deciding motions of all kinds, issues of law, applications, for judgment, and, in fact, almost every variety of question except the trial of an issue of fact. This practice has undoubtedly grown out of a misapprehension of the term “ Judge at Chambers,” and confounding it with the powers of the District Court in vacation. These latter powers are enumerated in Section 43 marginal, on page 562 of the New Edition of the Statutes, and comprehend a great many questions which require in their determination a full exercise of the judicial functions, and can only be entertained by the Cowt, and not by a Judge at Chambers; and were it not for the statute above cited, these duties would have to be performed in term time. This provision is for the sake of expedition and convenience in the transaction of business, simply; but the tribunal is as much the Court while engaged in the performance of such duties in vacation, as when seated on the bench in term time. Chamber duties are confined to such preliminary and intermediate matters as the granting of orders to show cause; extending time to plead; letting to bail; granting injunctions, and many other matters of a similar nature, which are usually ex parte, go of course on a prima facie showing, and may be allowed by the Judge of a Court, when out of term and when acting as Judge merely, and not as the Court. About as clear an idea as can be obtained of the distinction between what may be done by a Judge, and what can only be done by the Court, will be arrived at by supposing the District Court to be composed of more than one Judge, say three. Now, it is quite evident that such a Court could not act in any matter requiring the exercise of judicial discretion without the presence of at least two members, yet either of the Judges out of term could grant any of the ordinary Chamber orders, without consultation with his brethren. The fact that the District Court is composed of but one Judge, in no way lessens the distinction between what that .Judge may do at Chambers, and what he can only perform as a Court, although it is practically lost sight of when the same Judge performs the two duties. Yet, when they are divided *358between different officers, some of whom possess concurrent jurisdiction with the District Judge in the exercise of Chamber duties, without possessing any of the powers of the District Court, the distinction assumes all its importance again.

    It was conceded on the argument by both Counsel that the Court Commissioner had no jurisdiction to hear and decide the demurrer in this case. But it is contended by the Defendant in Error that the Writ of Error will not lie, the District Court not having in fact passed upon the question, and that the proper practice would have been to apply to the District Court on motion to set aside the judgment. We have held in several cases that we would not in the first instance entertain questions’upon Writ of Error or appeal, where the error complained of had not been in fact made by the Court below. Such as, for instance, an erroneous assessment of damages or costs by the Clerk, or even by the Judge when made without objection, and have decided that the practice in such cases is by application to the District Court to set aside the judgment or otherwise correct the error. In such cases, where the error is one of the Clerk, Sheriff, or other officer 5f the Court, an application to the District Court stands as an appeal from the decision of such officer, and is very properly made in the first instance to his immediate superior. While the Court Commissioner cannot be regarded strictly as an officer of the District Court, and is really a tribunal invested to some extent with concurrent jurisdiction with that Court, still, as there is no appeal to the Supreme Court from his acts, but only from those of the District Court, we think the case falls within the rule which we have frequently acted upon, that we will not review questions which have not been actually decided by the Court below. The judgment is therefore affirmed, without prejudice to an application to the District Court for the relief sought here. No costs are allowed to either party.

Document Info

Judges: Elandrau

Filed Date: 12/15/1859

Precedential Status: Precedential

Modified Date: 11/10/2024