State ex rel. Barber v. McBain

• Decision Date: 14 March 1899
• Citation: 102 Wis. 431,78 N.W. 602
• Parties: STATE EX REL. BARBER v. MCBAIN, CLERK.
• Court: Wisconsin Supreme Court

102 Wis. 431

78 N.W. 602

STATE EX REL. BARBER

v.MCBAIN, CLERK.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Mandamus by the state, on relation of James T. Barber, against Henry McBain, clerk of the circuit court of Eau Claire county, to compel respondent to make an entry of final adjournment. From an order quashing the writ, relator appeals. Affirmed.

The relator was plaintiff in a suit to close up a corporation from whch he, a stockholder, had received certain security for advances. On December 30, 1897, order and judgment were entered allowing final account of the receiver, sustaining plaintiff's security, and directing distribution of the proceeds of assets among creditors. The next regular term of that court commenced the third Monday of March. It had been a custom of the judge to keep the term in Eau Claire county open, so that court business could be done at any time, and this was accomplished by a direction to the clerk simply “to hold the court open.” The term of the then circuit judge (Bailey) expired on Monday the 3d of January. He had 10 days previously announced to the bar that he should adjourn the court for the term at the expiration of his term of office. On December 30th, at the close of business, he gave certain instructions to the clerk, as to which he and the clerk, in affidavits now made, differ. He states that his instructions were “to hold said term open during Friday and Saturday, being the 31st of December, 1897, and the first day of January, 1898, and until the expiration of affiant's term of office, and that then the business of the term would be concluded, and the term would stand adjourned.” The clerk states the judge's instructions to have been: “Hold it open just as we have done. I will be here to-morrow and Saturday.” The entry on the records is the usual one: “Court held open.” Judge Bailey did not attend or hold court either Friday or Saturday. On January 18, 1898, the then circuit judge (O'Neill) made an order to show cause, returnable before said court on February 1st, why that judgment and certain orders should not be vacated and set aside, and amendments and changes in pleadings be permitted, practically reopening the whole matter, upon which order to show cause the said judgment and order have been fully vacated, and various proceedings since had. The prayer to the circuit court was for a writ of mandamus commanding the respondent, as clerk, to enter and record a final adjournment of said December term, 1897, on the minutes of said court, nunc pro tunc as of some date which the court should direct, prior to the 18th day of January, 1898, as provided by section 2573 of the Revised Statutes of Wisconsin, or show cause to the contrary.

Frawley, Bundy & Wilcox, for appellant.

F. M. Miner, for respondent.

DODGE, J. (after stating the facts).

Appellant apparently makes three contentions: First, that the direction of the court given on December 30th made it the duty of the clerk to enter on the record a final adjournment upon January 1st; second, that the statute (section 2573) made it the duty of the clerk, upon nonappearance of the judge either on December 31st or January 1st, to enter daily adjournments for three days, and then to finally adjourn the term; third, that, by failure of the court to adjourn to a specific time, the term came to an end. Without stopping now to discuss whether any, and, if so, what, of these contentions, if sustained, would support the relief prayed, namely, mandamus commanding the clerk to enter and record a final adjournment on some date prior to January 18th, we will consider these several positions.

1. The petition, with the attached affidavits made part thereof, does not support appellant's first contention, as a fact. The utmost force that can be given to Judge Bailey's own statement of what transpired only establishes that the clerk was instructed to make entry holding the court open for the ensuing two days, with the expectation that the court would then be present, accompanied by a declaration that the judge on December 30th had a purpose to finally adjourn the term on January 1st. Final adjournment is a judicial act, requiring the presence of the court to per form; and, as the court was not sitting on the 1st of January, such judicial act could not have been performed. Many of the authorities hold that power to perform such act cannot be delegated to the clerk; so that, even had Judge Bailey on December 30th definitely instructed the clerk to finally adjourn the term on January 1st, it would not have been effective to authorize such act. In re Terrill (Kan. Sup.) 34 Pac. 457; In re McClaskey, Id. 459...