In the Matter of the Life and Fire Insurance Company of New York, Plaintiffs v. the Heirs of Nicholas Wilson

• Decision Date: 01 January 1834
• Citation: 33 U.S. 291,8 Pet. 291,8 L.Ed. 949
• Parties: IN THE MATTER OF THE LIFE AND FIRE INSURANCE COMPANY OF NEW YORK, PLAINTIFFS v. THE HEIRS OF NICHOLAS WILSON
• Court: U.S. Supreme Court

33 U.S. 291

8 Pet. 291

8 L.Ed. 949

IN THE MATTER OF THE LIFE AND FIRE INSURANCE COMPANY OF

NEW YORK, PLAINTIFFS

v. THE HEIRS OF NICHOLAS WILSON.

January Term, 1834

ON a motion for a mandamus to the district court of the United States for the eastern district of Louisiana.

This case, as stated in the opinion of the court, was as follows.

This suit was commenced in the district court of the United States for the eastern district of Louisiana, on the 26th of May 1826. The action was brought on a mortgage on real property and slaves, in the state of Louisiana, to secure the payment of a large sum of money. And at the first term the following judgment was entered. 'In this case, the plaintiffs having filed in this court a transaction, entered into between tween the parties, before Greenbury Ridgley Stringer, Esq., a notary public in and for the city of New Orleans, and the same being read to the court, it is thereupon ordered, adjudged and decreed, that, in pursuance of said transaction, judgment be entered up in favour of the plaintiffs, for all the notes therein specified, which have become due and payable, with seven per cent interest thereon, from the time they and each of them respectively arrived at maturity, to wit; the sum of eleven hundred dollars, due on the 18th of November 1824; the sum of four thousand dollars, due on the 18th of January 1825; the sum of nine hundred and sixty dollars, due on the 18th day of May 1825; the sum of seven hundred and twenty-five dollars, due on the 18th of November 1825; and the sum of four thousand dollars, due on the 18th of January 1826. It is further ordered, adjudged and decreed, in pursuance of the transaction aforesaid, that whenever any of the notes mentioned in said transaction, as yet not arrived at maturity, shall become due and payable, that then judgment shall be entered up for the plaintiffs, upon all and every of the said notes, as they arrive at maturity, with seven per cent interest, from the time they become due and payable, until their final judgment. It is further ordered, adjudged and decreed, that there shall be a stay of execution on said judgment, until the 18th day of January 1829; and that if the amount of the judgment in this suit, is not then paid, including principal, interest and costs, on said day, that the said slaves and movable property, described in the mortgage mentioned in plaintiff's petition, shall be sold according to law, to satisfy the judgment in the premises.'

By the code of practice of Louisiana, sec. 3 and art. 546, it is provided, that, 'the judge must sign all definitive or final judgments rendered by him, but he shall not do so, until three judicial days have elapsed, to be computed from the day when such judgments were given.'

In conformity with the practice of the state courts under this law, it seems the district court of the United States in Louisiana, has adopted a rule which requires all its judgments to be signed. But the judge who rendered the above judgment, departed this life before he signed it, and no proceedings were had in the case until the 21st of May 1832, when a notice was filed in the clerk's office, to the heirs of Wilson, that at the next term, application would be made to the district judge, on behalf of the plaintiffs, to sign the judgment. A motion to this effect was made, which was overruled by the court.

At the last term of this court, a rule was granted on the district judge, to show cause why a mandamus should not be issued, commanding him to sign the judgment and direct execution. And, at the present term, the district judge, in obedience to the rule, gives the following reasons why he refused to sign the judgment and award execution in the case.

'At the May term 1826, Judge Robinson caused the judgment to be entered. That he did not sign the judgment, although he held three terms afterwards, and did not die until in the autumn of 1828. And now the plaintiffs move, that I, as his successor, shall sign the judgment, in order to render it executory.

'This application is resisted by the defendants, on several grounds, but principally, 1st. Because they say there never way any legal judgment given: and secondly, that the record of the proceedings does not exhibit such a case as entitled the plaintiffs to judgment.

'If the first position of the defendants be correct, viz. that no legal judgment has been given, the application of the plaintiffs must fail.

'By a positive law of the state of Louisiana, all judgments rendered, if not set aside for legal cause within a given number of days, must be signed by the judge before execution can be taken out upon them; in other words, the judgments are not complete, or rather are no judgments at all, until they are so signed. A law of this state expressly requires the signature of the judge, before the judgment can be carried into effect; for there may arise sufficient reasons between the rendition of a judgment pro forma, and the time allowed for signing it, to induce the judge to withhold his signature. That such reasons did arise in this case, may be presumed; for it is a legal presumption, that public functionaries perform their duty when required; and although it is not expected that a judge will call for and sign judgments, without being so required; yet it is strange, that a party so much interested, should not have made application to the judge in the course of two years to sign this judgment; and it is also remarkable, that the plaintiff's attorney of record, who procured the making of the judgment entries, never has, to this day, made any such application; but on the contrary, the record shows, that they subsequently instituted new suits, in the name of the assigness of the original plaintiffs, against the same defendants, to recover the amount now in controversy. Why did they proceed in this manner, if they had a right to the original judgment. The judge's signature to a judgment being, by our law, an essential part of it, inasmuch as it is a dead letter without it; it follows, that he who signs it, thereby makes it his own judgment. Therefore, were I to give validity to what is here called a judgment, by affixing to it my signature, would it not be to pronounce on the rights of the parties whose cause I have never heard?'

These, and other reasons assigned in illustration of the principles above stated, induced the district judge to refuse his signature to the judgment.

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 rendered 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...