State ex rel. Jacobson v. District Court of Ward County of Fifth Judicial District
| Citation | 277 N.W. 843,68 N.D. 211 |
| Decision Date | 21 February 1938 |
| Docket Number | 6523 |
| Court | United States State Supreme Court of North Dakota |
Application by the State on the relation of Bertel Jacobson and E. A. Donnelly for a supervisory writ.
Application by the State of North Dakota, on the relation of Bertel Jacobson and another, for a supervisory writ directed to the District Court of Ward County in the Fifth Judicial District and the Honorable John C. Lowe, District Judge thereof, to require that a grand jury be discharged.
Writ granted.
Syllabus by the Court.
1. Sections 86 and 87 of the State Constitution vest in the Supreme Court: (1) Appellate jurisdiction; (2) a general superintending control over all inferior courts; (3) an original prerogative jurisdiction; and (4) the power to issue such original and remedial writs as may be necessary for the proper exercise of the appellate, superintending, and original jurisdictions so vested in the Supreme Court.
2. The power of the Supreme Court to exercise general superintending control over all inferior courts is separate and distinct from its power to exercise appellate and original prerogative jurisdictions, and applies as well to criminal as to civil actions and proceedings.
3. The power of general superintending control over all inferior courts was granted to insure the harmonious working of the judicial system of the state to meet emergencies, and enables and requires the Supreme Court in a proper case to control the course of judicial proceedings and litigation so as to prevent injustice in cases where there is no adequate remedy by appeal or otherwise.
4. When an application is made to the Supreme Court invoking the power of superintending control over inferior courts and it appears that the case is one in which the power may be exercised properly, it is for the court to determine whether the ends of justice require that the power should be exercised.
5. The power of general superintending control over inferior courts was vested in the Supreme Court to assure a corrective remedy where an inferior court refuses to act within its jurisdiction, acts injudiciously or erroneously within its jurisdiction, or acts beyond its jurisdiction, to the serious prejudice of any citizen, and where there is no adequate remedy for the review and correction of such erroneous and prejudicial acts.
6. The power of general superintending control over all inferior courts is not affected by the fact that the action complained of was one within the jurisdiction of the inferior court. It may be invoked to correct erroneous action within the court's jurisdiction resulting in serious prejudice to a citizen and for which no adequate remedy is provided.
7. The power of superintending control will not be exercised upon light occasions. It will be exercised only when there is no other adequate remedy and where the exigency is of such nature as obviously to justify the interposition of the general superintending power of the court.
8. A grand jury is discharged by operation of law upon the final adjournment of the term of the district court for which it was impaneled and cannot be continued beyond the final adjournment of such term.
9. Where by order of the judge a grand jury is continued in session after the final adjournment of the term for which it was impaneled, and continues its investigations and presents indictments against citizens and accusations against public officers, a person against whom an indictment or accusation is presented and against whom such investigations are being made may invoke the power of general superintending control of the Supreme Court, and the erroneous action of the inferior court may be corrected by appropriate writ.
E R. Sinkler and G. O. Brekke, for relators.
The Supreme Court has a general superintending control over all the inferior courts of the state under such regulations and limitations as may be prescribed by law. State Const. § 86; State v. District Ct. 49 N.D. 1107, 194 N.W 746; State v. District Ct. 55 N.D. 641, 215 N.W. 87; State ex rel. Dakota Hail Asso. v. Carey, 2 N.D. 36, 49 N.W. 164; State v. Burr, 16 N.D. 581, 113 N.W. 705; State ex rel. Birdzell v. Tax Commission, 25 N.D. 539.
Stephens v. Faus, 20 S.D. 367, 106 N.W. 56.
If an order denying a motion for judgment notwithstanding the verdict is withheld from record but served upon opposing attorneys, the time within which an appeal may be taken starts to run from the date of service. Lake Grocery Co. v. Chiostri, 34 N.D. 386, 158 N.W. 998.
Although the statute merely directs that an order shall be entered and contains no provision nullifying it unless so entered, the order is nevertheless void unless entered. Blackwood v. Blackwood, 47 S.W. 483.
Where an order is granted upon notice of motion to adverse party it does not become complete or effective for any purpose until entered. Redhead v. Iowa Nat. Bank, 123 Iowa 336, 98 N.W. 806.
All orders of a court not entered of record are extra-judicial and void. Medlin v. Platte County, 8 Mo. 235.
An order not made on the docket or filed with the clerk, but retained in possession and under the control of a party to the suit or his attorney, is not operative as an order. United States L. Ins. Co. v. Shattuck, 159 Ill. 610.
Grand juries when unprejudiced and unbiased and uninfluenced by motives of political intrigue or personal spite are favored, but when they descend to unworthy actions they should be condemned. Burns International Detective Agency v. Doyle, 26 A.L.R. 604; 2 Wharton, Crim. Proc. 10th ed. § 1295.
A court should be held at a time authorized by law, and where a court is held at an unauthorized time all proceedings therein are void. 7 R.C.L. p. 988.
Alvin C. Strutz, Attorney General, and Milton K. Higgins, Assistant Attorney General, for respondents.
The Supreme Court will exercise its general superintending control over inferior courts only in exceptional cases and where questions of great public interest are involved. State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385; Zinn v. Barnes County, 17 N.D. 128, 114 N.W. 475; Fitts v. Superior Ct. (Cal.) 51 P.2d 66.
Cases transferred irregularly from one division to another are nevertheless valid from the standpoint of jurisdiction. 15 C.J. 869.
The operation of the grand jury may be extended beyond the original term of court. Elwell v. United States, 275 F. 775; Long v. State, 160 Ga. 292, 127 S.E. 842; People v. Cochrane (Ill.) 138 N.E. 291; State v. Wescott, 194 Wis. 410, 217 N.W. 283; State v. Kaplan, 256 Mich. 36, 239 N.W. 349; Halsey v. Superior Ct. (Cal.) 91 P. 987.
Some authorities hold that orders are not necessarily void or ineffective because not entered. Loper v. Wading River Realty Co. (N.Y.) 127 N.Y.S. 1000; Jeansch v. Lewis, 1 S.D. 609, 48 N.W. 128; Allen v. Voje, 114 Wis. 1, 89 N.W. 924.
Courts have inherent power to make orders nunc pro tunc, modifying their records to speak truth. State v. Frey, 206 Iowa 981, 221 N.W. 445; Breeding's Petition, 75 Okla. 169, 182 P. 889; Courtney v. Barnett, 65 Okla. 189, 166 P. 207; Calloway v. Doty, 108 Neb. 319, 188 N.W. 104; Clark etc. Co. v. Rich, 81 Neb. 321, 115 N.W. 1084; Andrew v. Winegarden, 205 Iowa 1130, 219 N.W. 326.
The statute fixing the period of time before the first day of the term of court for the selection of grand jurors is, by the weight of authority, construed to be merely directory. 12 R.C.L. p. 1015; State v. Marsh, 13 Kan. 596; State v. Noyes, 87 Wis. 340, 58 N.W. 386, 27 L.R.A. 776; People v. Morgan, 133 Mich. 550, 95 N.W. 542.
Sathre, J., did not participate.
The relators have applied for a supervisory writ to be directed to the District Court of Ward County in the Fifth Judicial District and to the Hon. John C. Lowe, one of the judges of the Fifth Judicial District, which writ shall require that a certain grand jury heretofore called for a special term appointed to be held in October, 1937, in said District Court of Ward County, be forthwith discharged and that the said District Court and the Judge thereof be prohibited from holding said grand jury in session.
It appears from the petition of the relators that they are taxpayers and county commissioners of said Ward county, and that they have been charged in certain accusations returned by the said grand jury with misconduct in office, and that the grand jury is conducting investigations affecting the relators, and that relators are threatened with further accusations being returned by the said grand jury.
The petition alleges in substance that on the 4th day of October 1937, the Hon. John C. Lowe, one of the Judges of the Fifth Judicial District, called a special term of the District Court in and for said Ward county; that on the 13th day of October, 1937, he ordered the Jury Board of Ward county to call twenty-three persons to act as a grand jury at said Special Term of the District Court, and ordered the said grand jury to report for duty on October 19, 1937; that the said grand jury met at said time and continued in session until October 27, 1937, and that on said day the said Special Term of the District Court ended or was adjourned. That...
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