Page v. Clopton

• Decision Date: 18 July 1878
• Citation: 71 Va. 415
• Parties: PAGE v. CLOPTON, Judge.
• Court: Virginia Supreme Court

71 Va. 415

PAGE v. CLOPTON, Judge.

Supreme Court of Appeals of Virginia.

July 18, 1878

I. On the 22d March, 1878, C, a judge in court, imposed a fine on P, an attorney, for alleged contemptuous behavior in the presence of the court, and at the same time, a motion was made by another attorney, to remit the fine, which motion was continued until a further day. On the 25th of the same month the court overruled the motion to remit the fine, and ordered the sergeant to take P in custody and detain him until the fine was paid. P was in court on both of these days, and no exception was taken to the action of the court. On the 27th of the same month, and during the same term, P, who had paid the fine under protest, appeared in court and offered to except to the judgment imposing the fine, and moved the court to certify the facts on which the judgment was ordered, and that witnesses be called to testify to these facts, which for reasons stated by the court, was refused. No bills of exceptions appear to have been tendered on this day, but on the 30th day of the same month, the last day of the term, P tendered three bills of exceptions to the judgment and rulings of the court, which the judge refused to sign, and P applied for a mandamus to compel him to sign the same--HELD:

1. The writ of mandamus will lie to compel the judge to sign bills of exceptions in this case, if " the truth of the case be fairly stated therein."

2. When a bill of exceptions is tendered which does not fairly state the truth of the case, it is the duty of the judge, with the aid of the counsel, to settle the bill, and when settled to sign it, and if he refuses to do this, mandamus will lie to compel him.

II. The usual practice is to give notice of the exception at the time the decision is made, and reserve liberty to draw up and present the bill for settlement and signing, either during the trial or after the trial, and during the term, as may be allowed by the court, but it must be signed during the term at which final judgment is rendered; and it will be disregarded in the appellate court, if signed after the end of such term, although signed pursuant to a previous order allowing it, unless, perhaps, such order be made by consent of parties.

III. The rule as to notice of intention to take an exception, or of taking it at the time of the ruling, does not apply to a case like the present, in which the exceptant and the judge are the only parties concerned.

IV. The office of the writ of mandamus is to compel corporations, inferior courts and officers, to perform some particular duty incumbent upon them, and which is imperative in its nature, and to the performance of which the relator has a clear legal right, without any other adequate, specific legal remedy to enforce it; and even though he may have another specific legal remedy, if such remedy be obsolete or inoperative, mandamus will lie. The remedy is extraordinary, and if the right is doubtful, or the duty discretionary, or there be any other adequate specific remedy in use, the writ will not be allowed.

This case was heard at Richmond, but was decided at Wytheville. It was a petition presented to this court by Samuel M. Page asking the court for a writ of mandamus to William J. Clopton, judge of the hustings court of the city of Manchester, to sign three bills of exceptions to the judgment of the judge imposing a fine upon the petitioner for a contempt of court. A mandamus nisi was issued; to which the judge made a return; and the case came on to be heard upon the petition and return and the exhibits filed with them. The facts are sufficiently stated in the opinion of Burks, J.

S. B. Witt and E. C. Cabell, for the relator.

D. L. Pulliam and B. A. Hancock, for the respondent.

OPINION

BURKS, J.

This is an application to this court to issue a writ of mandamus to compel the Honorable William I. Clopton, judge of the hustings court of the city of Manchester, to sign several bills of exceptions tendered by the relator, Samuel M. Page, to a judgment for a fine imposed on him for an alleged contempt by misbehavior in the presence of the said court.

Original jurisdiction to issue writs of mandamus and prohibition to the circuit and corporation courts, and the hustings court and chancery court of the city of Richmond, and in all other cases in which it may be necessary to prevent a failure of justice, in which a mandamus may issue according to the principles of the common law, is conferred upon this court by statute enacted pursuant to the constitution of the state; and it is provided that " the practice and proceedings upon such writs shall be governed and regulated in all cases by the principles and practice now prevailing in respect to writs of mandamus and prohibition, respectively." Code of 1873, ch. 156, § 4; Con. of Virginia, art. 6, § 2.

For the pleadings and practice in writs of mandamus as regulated by statute, see Code of 1873, ch. 151.

This court refused to award the mandamus applied for in Barnett v. Meredith, 10 Gratt. 650, because neither the constitution of 1850 nor the statute then in force conferred the jurisdiction to award the writ. The provisions of the present constitution in relation to the awarding of such writs are substantially the same as those contained in the constitution of 1850, but the present statute expressly confers the jurisdiction which the former statute did not confer.

The office of the writ of mandamus is to compel corporations, inferior courts and officers to perform some particular duty incumbent upon them, and which is imperative in its nature, and to the performance of which the relator has a clear legal right, without any other adequate specific legal remedy, to enforce it; and even though he may have another specific legal remedy, if such remedy be obsolete or inoperative, the mandamus will be granted. 6 Bac. Abr. (Bourrier's ed.) 418; Broom's Leg. Max. 192, note; Carr, J., in King William Justices v. Munday, 2 Leigh 168-9. The remedy is extraordinary, and if the right is doubtful, or the duty discretionary, or there be any other adequate specific legal remedy in use, this writ will not be allowed.

Lord Mansfield is authority for saying that " it was introduced to prevent a failure of justice and defect of police; therefore," said he, " it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." Rex v. Barker, 3 Burr. R. 126.

In relation to courts and judicial officers, it cannot be made to perform the functions of a writ of error or appeal, or other legal proceeding to review or correct errors, or to anticipate and forestall judicial action. It may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.

These principles are recognized and illustrated by multitudes of decisions, English and American. Some made by this court and the general court of this state, and by the supreme court of the United States, are here cited: Com. v. Justices of Fairfax Co. Ct. 2 Va. Cas. 9; Dawson v. Thurston & others, 2 Hen. & Mun. 132; Brown v. Crippen & Wise, 4 Hen. & Mun. 173; King William Justices v. Munday, 2 Leigh 165; Harrison v. Emmer son & others, Id. 764; Mann v. Givens & others, 7 Leigh 689; Morris, ex parte, 11 Gratt. 292, 297; Yeager, ex parte, Id. 655; Randolph Justices v. Stalnaker, 13 Gratt. 523; Comon. v. Fulton, judge, 23 Gratt. 579; Kent, Paine & Co. v. Dickinson, judge, 25 Gratt. 817; United States v. Lawrence, 3 Dall. R. 42; Exparte Crane, 5 Pet. R. 190; Exparte Roberts, 6 Pet. R. 216; Exparte Bradstreet, 7 Pet. R. 634; Exparte William Hany, 14 How. U. S. R. 24; Life & Fire Ins. Co. v. Wilson's Heirs, 8 Pet. R. 291; Life & Fire Ins. Co. v. Adams, 9 Pet. R. 571, 592; Exparte Hoyt, 13 Pet. R. 279; Fxparte Cutting, 94 U. S. (4 Otto), 14.

Our statutes provide that " a party in a criminal case, or proceeding for contempt, for whom a writ of error lies to a higher court, may except to an opinion of the court and tender a bill of exceptions, which (if the truth of the case be fairly stated therein), the judge, judges or justices, or the greater part of those present, shall sign; and it shall be a part of the record of the case; " and that a writ of error shall lie " to a judgment for a contempt of court, other than for the non-performance of or disobedience to a judgment, decree or order." A similar provision is made for allowing bills of exceptions in the trial of civil cases " in which an appeal, writ of error or supersedeas lies to a higher court." Code of 1873, ch. 203, §§ 1, 4; ch. 173, § 8.

In either of the cases in which bills of exceptions are allowed, that is, in the trial of a case at law, or in a criminal case or proceeding for contempt in which a writ of error lies to a higher court, if a party excepts, as he may, to an opinion or judgment of the court in due time, and tenders in due time his bill of exceptions, the judge is required to sign the bill, " if the truth of the case be fairly stated therein." If the conditions of the statute are satisfied, the right of the party is clear and the duty of the judge equally clear, and it is imperative.

He has no discretion in the matter. The language of the law is, he " shall sign. " If, in the case supposed the judge refuse to sign the bill, then, " according to the principles of the common law," the party...