Cain v. Libby

Decision Date02 December 1884
Citation21 N.W. 739,32 Minn. 491
PartiesCAIN v LIBBY.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the district court, Hennepin county, denying motion of defendant to vacate judgment.

Frederick Hooker, for respondent, James Cain.

Rea, Kitchell & Shaw, for appellant, A.D. Libby.

VANDERBURGH, J.

This is an appeal from an order of the municipal court of Minneapolis, denying a motion to set aside a judgment against the defendant in that court. The case was tried before Hon.GROVE B. Cooley, judge of that court, who failed to file a decision therein previous to the expiration of his term of office. The facts, as set forth in defendant's application, and as shown by the affidavit of his Honor, are “that said action was tried before him as judge, without a jury, on the sixth day of April, 1883; that he did not write his findings and decision of said case until subsequent to the expiration of his term as such judge and his vacation of said office,-that is, until after the tenth day of April, 1883; that he commenced writing out said decision prior to said tenth day of April, but did not complete and file the same until some time after that time.” The decision was filed May 21st, and orders judgment for the plaintiff, which was accordingly entered. In the absence of any further explanatory evidence, it must be taken that the judge ceased to fill or occupy his office on the tenth day of April. The presumption from the language used is that he surrendered the office on that day, and being out of office he could do no further official act; hence the written decision and order subsequently made would be unauthorized and of no effect. It is not enough that he had arrived at a conclusion before his term expired; it was necessary that his decision be reduced to writing and filed; until then it was subject to revision, and could not be considered as determining the case. Kissam v. Hamilton, 20 How. Pr. 376;Ayrault v. Sackett, 17 How. Pr. 461;Putnam v. Crombie, 34 Barb. 239.

In Carli v. Rhener, 27 Minn. 292;S. C. 7 N. W. REP. 139, the judge filed his decision in writing the same hour, but after his successor qualified, and in ignorance of the latter fact, and while he was still in possession of the office and performing its duties. He had not yet surrendered or vacated it. And he was held to be an officer de facto, and his acts valid. That case is clearly distinguishable from this, and the same remark applies to the case of State v. Brown...

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10 cases
  • State ex rel. Harp v. Vanderburgh Circuit Court
    • United States
    • Indiana Supreme Court
    • April 14, 1949
    ...413; Weyman v. National Broadway Bank, [1880], 59 How.Prac., N.Y., 331; Putnam v. Crombie, [1861], 34 Barb., N.Y., 232; Cain v. Libby, [1884], 32 Minn. 491, 21 N.W. 739; Ells v. Rector, [1875], 32 Mich. 379; 23 565.' Wainwright v. P. H. & F. M. Roots Co., 1912, 176 Ind. 682, 698, 699, 97 N.......
  • Cirro Wrecking Co. v. Roppolo
    • United States
    • Illinois Supreme Court
    • October 22, 1992
    ...that the death of a trial judge, prior to his determination of facts and conclusions of law, necessitated a new trial); Cain v. Libby (1884), 32 Minn. 491, 21 N.W. 739 (holding that a trial judge's failure to render judgment following trial until after the expiration of his term had no lega......
  • Crane v. First Nat. Bank of McHenry
    • United States
    • North Dakota Supreme Court
    • November 21, 1913
    ...v. Sargent, 7 Ill. App. 98, and State ex rel. v. Allen, 235 Mo. 298, 138 S. W. 339; and for similar facts and holding see Cain v. Libby, 32 Minn. 491, 21 N. W. 739. [6] We conclude that the filing of findings, conclusions, and order for judgment is a necessary part and the final act in the ......
  • Wainwright v. P.H.&F.M. Roots Co.
    • United States
    • Indiana Supreme Court
    • January 9, 1912
    ...272, 11 Am. Rep. 413;Weyman v. National Broadway Bank, 59 How. Prac. (N. Y.) 331;Putman v. Crombie, 34 Barb. (N. Y.) 232;Cain v. Libby, 32 Minn. 491, 21 N. W. 739;Ells v. Rector, 32 Mich. 379; 23 Cyc. 565. The consideration of the case by Judge Morris never having reached the point of deter......
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