Oakley v. . Aspinwall , 3 N.Y. 547 ( 1850 )

This case came before us by appeal from the superior court of the city of New-York, where Oakley as plaintiff had recovered judgment for a large amount against the defendants as sureties for one Baker. The cause was argued in September, 1849, and at the following December term the judgment was reversed and a new trial ordered, all of the judges being present, and no one dissenting at the time, from the judgment which was rendered. At the last March term, Mr. Hastings as counsel for the plaintiff, on affidavits and papers which had been served on the attorney for the defendants, made a motion that the entry of judgment be vacated, and that the case either be reargued or a judgment of affirmance be entered. The objection to the judgment rests on the allegation, that there was a division of opinion among the judges, either in their consultation room or somewhere else, out of court — five only concurring in the opinion that the judgment should be reversed; and that one of the five, who is not now a member of the court, was not competent to sit in judgment for two reasons; first, that he was out of court some part of the time while the cause was under argument; and second, he was related in the sixth degree to the defendants John L. and William H. Aspinwall. (2 R.S. 275, § 2; Code, § 14.) On these grounds it is insisted that the judgment of reversal was irregular and void.

It is difficult to determine how much or how little ought to be said about this most extraordinary motion; but as it has acquired some importance by holding the papers over the term, it may be proper to notice several things involved in the application.

And in the first place, the motion contains an impeachment of one of the judges who sat in this court the last year; and we are asked, though indirectly, to pass a judgment of condemnation upon him. That I am not prepared to do. This is neither the court which the people have ordained for the trial of impeachments; nor has the accused party had an opportunity to be heard in his defence. I shall be slow to pronounce a judicial censure upon any of my associates, past or present, until I take my seat in another forum, and all the forms for securing a just judgment have been duly observed.

There is also involved in the motion a censure upon all who were members of the court the last year. The papers show, about as well as they show any thing, that the facts which are supposed to have disqualified one of the judges were known to all the others; and if they pronounced a judgment of reversal without the concurrence of five competent judges, they acted contrary to law. I have already declined passing a judicial censure upon others; and it will not, perhaps, be thought unreasonable that I should now decline giving judgment against myself.

But without laying any stress upon these considerations, it is a radical objection to the motion, that the plaintiff seeks to overthrow a judgment rendered by a full court of eight judges, by going behind the public act of the court, and inquiring what took place among the judges when they were in conference in relation to the proper decision. Such a motion suggests many reflections. How is it to be known what the judges said or thought when they were conferring together in private; and how is it to be ascertained that they remained of the same opinion at the time the judgment was publicly pronounced? Must they deliberate in presence of witnesses, and be impeached if they give their impressions one way and afterwards act the other way? Or may the judges be interrogated as to what they said or thought in the conference room, and whether their real sentiments were expressed in the subsequent public act? When the chief justice declares the judgment of the court in any case, can the counsel poll the judges to ascertain how many concur in the judgment? Or is it to be presumed, in the absence of any dissent, that all are agreed that the proper judgment has been declared? Many other thoughts are suggested: but I forbear. The motion is wholly without precedent; and no one can fail to see that its tendency is to degrade the judges, and bring them into public contempt. I am in no way responsible for the present judicial system; but while I sit here I am bound to maintain and defend the honor and dignity of the judiciary; and I shall not knowingly yield to any influence, whatever it may be, which tends in the opposite direction.

The point has been several times decided by the court of errors that a rehearing would not, and could not, be legally granted after a cause had been decided on the merits. (The People v.The Mayor of New-York, 25 Wend. 252; and the cases ofWadsworth v. Morris, and Van Kleeck v. The Reformed DutchChurch, there cited.) Chancellor Walworth, who delivered the opinion of the court in the principal case, thought such a precedent would lead to great abuse in a court where the members were often changed. That remark applies much more strongly to this court, than it did to the court of errors; for here one half of the members, at the least, are changed annually, while in the court of errors the change was not more than one fourth annually. In this very case only one half of the judges who are now sitting upon this motion were members of the court when the case was decided; and only three of the present judges heard the argument and took part in the decision. It will be seen that the court of errors, in the cases which have been cited, went beyond the question of expediency, and denied the legal power to grant such a motion. It is true that those cases are not directly in point; and it must be admitted that no such case can be found; but it is for the reason that this is the first time that any one has ever attempted to go behind the public act of the court, and impeach its judgment by inquiring what was said or done among the judges out of court.

Should it, however, be granted that such a thing may be done, the next answer to the motion is, that the alledged facts on which it is founded have not been proved. No legal evidence has been furnished that there was any difference of opinion among the judges, either in or out of court; nor is there any legal proof that the impeached judge took part in making the decision. The plaintiff says he has been informed and believes that only five judges voted for the reversal, and that the disqualified judge was one of the number. And the counsel tells us, in his affidavit, that he was "busy for near a month in finding out who had voted, and on what grounds;" that he went to Albany, and "there learned, from an entry in a small book kept by the presiding judge, [meaning, I presume, the chief justice,] the names of those who had voted to reverse the judgment;" whose names, five in number, are then given: and he was informed of certain other things, which he believes to be true, all tending to show that only five judges concurred in the reversal — the disqualified judge being one of the number. It is a sufficient answer to this, that mere information and belief is not legal evidence: it proves nothing. How the counsel came by the "small book" is not stated, nor is it important to inquire; for what he learned from the book is no better than the hear-say evidence.

Although, as a general rule, information and belief is not legal evidence, it may under certain circumstances furnish sufficient ground for granting a motion. If, for example, the moving papers state upon information and belief the existence of a fact, the truth or falsity of which lies in the knowledge of the party who is to answer, and he gives no answer, there is then reasonable ground for presuming the existence of the fact. But that rule can have no application in this case, for the obvious reason that neither the defendants nor their attorney, on whom the papers for the motion were served, can be supposed to know what took place among the judges when they were advising by themselves, out of court, concerning the judgment which should be rendered. We have no right to presume that they laid their ears to the key hole, or attempted in any other way to pry into the minds of the judges when they were in conference upon the case. And it will not, I suppose, be expected that the judges will leave the bench, and make affidavits in answer to the information and belief of the plaintiff or his counsel. When they consent to do such an act, they will merit the contempt which they will be sure to receive.

I repeat, therefore, there is no legal evidence on the points which have been mentioned; and I shall make no presumption for the purpose of impeaching either the judge or the judgment.

Enough has been said to dispose of the motion; but it is due to the judge whose acts have been called in question, if not to the counsel who made the motion, that I should go a little further. And now I will assume, what has not been proved, that the judge did take part in the decision of the cause, and that there would not have been five voices for the reversal without him.

The first ground of impeachment is, that the judge did not hear the whole of the argument — having been out of court the whole or the greater part of one of the three sittings which were occupied with the discussions at the bar. For the purpose of making out this allegation the counsel has not only given his own recollection and belief, but he has got a letter from the deputy clerk, who knows nothing about the matter, and affidavits from two or three gentlemen who were attending the court at the time, tending to show that the judge was out of court during the forenoon sitting of Saturday. It seems also that the judge has been applied to on this subject, and that he has written a letter to the plaintiff's counsel, saying, in substance, that he was out of court for a brief period, or a small part of the forenoon sitting on the second day of the argument [Saturday] in consequence of illness; and, as he learned from one of his associates, nothing material was said in his absence, except in reference to a supposed defect in the record, of which the court took no notice in giving judgment. The affidavit of the counsel for the defendants goes to show, that the judge was out of court for only a small part of the forenoon sitting on Saturday. But whether it was half an hour or half a day, it was for the judge to consider whether he had heard enough of the argument to make it proper for him to take part in the decision; and no one else has the right to meddle with that question. I can not but feel abased at finding it necessary to state that such a matter has been brought before the court. If any countenance should be given to this experiment, we may expect to have spies set over us to watch our going out and coming in; and the judiciary will soon be too deeply degraded to be any longer a useful branch of the government. When the judges cease to be respected, there will be an end to the successful administration of justice.

The remaining ground of impeachment is, that the judge was second cousin to the Messrs. Aspinwall. If we stop here, the judge could not properly sit in the cause. But I am not prepared to admit that the judgment would therefore be void. We have been referred to several cases where the judgments and proceedings of inferior courts and officers, exercising special and limited powers, have been held void on account of the interest of the judge or officer in the subject of the suit, or his relationship to one of the parties. But no authority has been produced, nor have I met with any, which holds that doctrine in relation to a court of superior and general jurisdiction. It is well known that one whose name and memory we all venerate sat in our court of chancery when his relative within the forbidden degrees was a party to the suit; and the same thing was done by the late chancellor; (see 2 Barb. Ch. R. 39;) and yet no one ever thought that the decrees which they made were void. Those are much stronger cases than this; for there the chancellor sat alone; while here, the judge was only one among eight members of a court, which clearly had jurisdiction. I do not pretend to be wiser or more virtuous than those who have gone before me; and until an authority can be produced for holding the judgment of a court of superior jurisdiction void because one of the several judges was under a personal disqualification, I shall hold such a judgment valid.

But I shall not leave the judge open to the censure which might possibly fall upon him from the partial statement which has thus far been made of the facts. Although the Messrs. Aspinwall were related to the judge in the sixth degree, they were sued as sureties for one Baker; and they were fully indemnified, by the deposit of money and securities, against all loss or damage in the premises, and had no personal interest whatever in the suit. The objection to the competency of the judge to sit, if it had the least possible force — which I very much doubt — was one of mere form, without one particle of substance in it.

That is not all. If there was the slightest ground for excepting to the competency of the judge, the objection was expressly waived by both parties before the argument came on. The judge was assured that his relatives, though parties to the record, had no interest in the suit; and the counsel on both sides united in requesting him to sit before he would consent to do so — the request on the part of the plaintiff coming from the very counsellor who has appeared here with affidavits and arguments to impeach the conduct of the judge for yielding to his request. If the counsel was not estopped by the law of the land from making such a motion, he must allow me to say, that the laws of honor and decency forbid it. But he was estopped by the law of the land. He was not at liberty first to invite a judge to sit — especially one to whom there was no substantial objection — and after taking the chances of having an opinion in his favor, turn round, when he found the opinion to be the other way, and repudiate his own act. The common law loves honesty and fair dealing, and never approves a different course of conduct. In all my experience — and there is no vanity in saying it has not been very small — I have never known a motion granted which had its foundation in a breach of the obligations of good faith.

I hardly need say that the party is concluded by the acts of his counsel.

But we are told that consent will not confer jurisdiction: and that is true when applied to subject matter, or to the case of a party who can not sue or be sued in an inferior court. But nothing is more common than that jurisdiction over the person is acquired by consent, instead of regular process, even in inferior courts. And besides, this is not a question of jurisdiction. That did not belong to any one judge, but to all of them collectively — in other words, to the court; and although one judge may have been subject to exception, it is not denied that the court had jurisdiction. The question then was not one of jurisdiction; but whether the judge was not subject to a personal disqualification to sit in that particular case. Most clearly such an objection might be waived by the parties. Nothing is more common than for the parties to waive an objection, on the ground of interest or relationship, to a juror, or to agree, when one of the panel becomes sick or is absent, that eleven jurors may render a verdict. No one would think of calling the verdict void in such a case. And if that may be done in relation to a juror, it can not be doubted that it may be done in relation to one of the judges. Whether it is expedient for a judge to sit in such a case is a question for himself; and there will be no just ground for censure whichever way he may decide. For myself, I have deemed it prudent to refuse to sit where I either had any interest, or was related to one of the parties, although both united in requesting me to act. But I never doubted that I might lawfully act, and pronounce a valid judgment in such a case — even when I was sitting alone, as a judge of the supreme court.

We are referred to the case of Coffin, executor, v. Tracy, (3 Caines, 129,) where a judgment confessed before a justice of the peace was held void. But it was on the ground that an executor could neither sue nor be sued in a justice's court; (see Way v. Cary, 1 Caines, 191;) and not on account of any disqualification in the magistrate. It has been held in Vermont that a judgment confessed before a justice of the peace was void, where the justice owned the demand, and was himself the plaintiff in interest; (Bates v. Thompson, 2 Chip. 96;) and also that a judgment confessed was void where the justice was related to the plaintiff. (Hill v. Wait, 5 Verm. 124.) Now, whether these cases were decided right or not, they are plainly distinguishable from this. They were judgments before inferior magistrates, having only special and limited powers. The jurisdiction, moreover, belonged to a single magistrate, and not to a court of which he was a component part. And finally, there was nothing in either case but the confession of judgment from which to infer a waiver of the objection to the magistrate; and the confession furnished no just ground for inferring a waiver, because there was no proof that the defendant knew of the disqualification of the magistrate at the time of the confession. Here, we have the case of a judge of a superior court; the court itself having unquestioned jurisdiction, and the objection to the judge being expressly waived. There is no color for the argument that the judgment is void; and no right minded man can fail to see, that the judge is entirely free from all just ground of censure.

I have said that there was no precedent for this motion; and that was true when my opinion was prepared. But since that time a motion having some of the same features has been made and denied; (Mason v. Jones, ante, p. 375;) all of the judges concurring in the decision.

It may be proper to add, that the views which I entertain of the motion have been fully submitted to the consideration of my associates. Whether those views have been, or can be, successfully answered, will be judged of by others.

Judges JEWETT and HARRIS concurred in opinion that the motion should be denied. Judge TAYLOR, not having heard the argument, gave no opinion.

Judges RUGGLES, GARDINER and PRATT concurred in the opinion delivered by Judge HURLBUT in favor of granting the motion.

In this stage of the case a question arose whether four judges against three could grant a motion. This involved an inquiry whether the court could be held by less than eight judges. The CHIEF JUSTICE and Judge JEWETT dissented also on that question, the former delivering his opinion as follows: