Johnson v. Higgins

Decision Date30 September 1885
Citation1 A. 616,53 Conn. 236
CourtConnecticut Supreme Court
PartiesJOHNSON v. HIGGINS.

Appeal from common pleas, New Haven county.

The facts are stated in the opinion.

Henry G. Newton, William K. Townsend, and John H. Whiting, for appellant, William E. Higgins.

C. S. Hamilton, for plaintiff, Samuel B. Johnson.

STODDARD, J. A plea in abatement is filed in this court. The finding and statement of rulings in the court below was not signed by the judge until the tenth day of April, 1885, and the judge had previously, and on the seventh day of March, 1885, resigned his office. It is now contended that the act of signing said finding and statement upon appeal was a judicial act, and must have been done by the judge while in office.

Upon the thirty-first day of March, 1885, a statute law took effect, which fully empowered the judge to make and sign the finding and statement after ceasing to hold office. This is admitted, but it is said that the act in question is beyond the power of the legislature, and is unconstitutional. Even if it be admitted that the act of the judge in signing the finding on appeal is a judicial act, in the sense claimed by the plaintiff, and that the act was done after he had ceased to be such judge, no authority has been brought to our attention denying the legislature the power implied in the law in question. Similar legislation, and of more embracing scope, has for many years been operative unchallenged, in reference to the judicial power of justices of the peace. No substantial reason is given why the legislative power is incompetent to authorize judicial officers, after their term of office, to complete the history of trials had, and to give permanent and official power to facts found during their term of office. Such acts are rather clerical than judicial.

But the constitutional term of office of the judge who tried this case below extended to June 30, 1885, so that the questioned act of the judge was done during his lawful term of office, and the legislature certainly may empower the judge to perform the acts complained of until the expiration of his term of office, notwithstanding the fact that the judge has sent his resignation to the governor of the state.

The signing of the finding and statement in this case is so far from being an illegal act that it may admit of serious question whether, even without the enabling legislation passed in 1885, the judge not only would have the power, but the duty may be imposed upon the judge by the law as it now stands, to complete the finding and statement upon appeal without reference to his term of office. By the statute regulating appeals, (Session Laws of 1882, c. 50.,) when a notice of appeal is properly made, the law imperatively commands the judge, under certain circumstances, (and the case in question presents such circumstances,) to make such finding as may be necessary to properly present the case for revision upon appeal, and the appeal need not be filed until after such finding or statement is made by the judge and filed with the clerk; and execution is to be stayed "until the expiration of the time hereinbefore fixed for filing the appeal." Under this law, a party has an absolute, unqualified right to take an appeal upon complying with the terms of the statute, irrespective of any act on the part of the judge, and the appeal is perfected without his sanction. Formerly, and under the practice as it existed before the passage of this act, it was otherwise, and no case could, by motion for a new trial, be taken to the supreme court without the presiding judge's allowance of the motion. Under this former practice, it was ruled that, with no statute permitting such act, the judge had no power to allow a motion for a new trial after his resignation had taken effect. In other words, the court ruled that the law had provided no way by which a party could go to the supreme court with a motion for a new trial, except such motion was allowed by a judge while in office. The law does not require such sanction by the judge to give the supreme court jurisdiction. This requisite statement of facts proved, and of rulings made upon the trial in the court below, is merely clerical, is absolutely imposed by the law as a duty upon the judge trying the case, is demanded by the rights of litigants, and is essential to the due administration of justice. Unless required by principle or precedent, courts would hesitate to rule that a person holding the office of judge can, by resigning his office, defeat the plain mandate of the law, the due administration of justice, and deny litigants appealing to the law their undoubted and material rights. At all events and not to pursue this subject...

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21 cases
  • Honulik v. Town of Greenwich
    • United States
    • Connecticut Supreme Court
    • October 13, 2009
    ...the provision's passage, its constitutionality was challenged as being "beyond the power of the legislature...."11 Johnson v. Higgins, 53 Conn. 236, 237, 1 A. 616 (1885). This court disagreed. In Johnson , a trial judge, subsequent to resigning his office,12 had acted pursuant to § 51-183g......
  • State v. Miranda
    • United States
    • Connecticut Supreme Court
    • August 2, 2005
    ...and although its statutory predecessor had been held to be constitutional before the adoption of that provision; see Johnson v. Higgins, 53 Conn. 236, 1 A. 616 (1885); it is consistent with the purpose of that provision to interpret § 51-183g to include the power to resentence following an ......
  • Hallam v. Tillinghast
    • United States
    • Washington Supreme Court
    • February 24, 1898
    ... ... 194; Hale v ... Haselton, 21 Wis. 325; Galbraith v. Green, 13 ... Serg. & R. 85; 2 Spell. Extr. Relief, § 1312; Johnson v ... Higgins, 53 Conn. 236, 1 A. 616. [19 Wash. 29] It is ... impossible for the court, as contradistinguished from the ... ...
  • Douglas v. Woodward
    • United States
    • Kansas Supreme Court
    • March 10, 1906
    ...would have been employed to indicate such purpose. Counsel in a similar case which is pending have called our attention to Johnson v. Higgins, 53 Conn. 236, 1 A. 616, authority for holding that the legislature has the power to confer upon a former judge who has tried a cause authority to pe......
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1 books & journal articles
  • 2009 Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 84, 2010
    • Invalid date
    ...found waiver from the plaintiff's failure to move for Schaller's removal from the case shortly after he turned 70. 10. Johnson v. Higgins, 53 Conn. 236, 1 A. 616 (1885). 11. 294 Conn. 243, 982 A.2d 1067 (2009). We say "apparently" because there is no footnote explaining Judge DiPentima's pa......

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