Review of Decisions. a State is a part of the general government. 4. Review of Decisions.-One judge cannot review the decisions of another judge of co-ordinate jurisdiction.3 Decisions of judicial questions cannot be controlled collaterally,+ but only by appeal, writ of error, etc. Acts ministerial and not judicial are not reviewable by certiorari.5 Matters discretionary will not ordinarily be reviewed ; but discretion demands, for its exercise, legal proof. 5. Miscellaneous.-Until commissioned, elected judges may prac tice law. The duties of a judge are to be performed openly; and he shall not confer in private with one party in the absence of the other. A judge of the court from which an execution issues may, if he will, buy at the sale.10 1. Landon . Mayor etc. of New York, 49 How. Pr. (N. Y.) 218, 221; Quinn 7. Mayor etc. of New York, 44 How. Pr. (N. Y.) 266. County Judge. Although a county judge may for certain purposes be classed with county as distinguished from state officials-may, for instance, be elected at the county elections and not at the state elections, and may be given onerous and important county work-he does not thereby lose his character as a state official; and like other state offices, that of the county judge in case of vacancy shall be filled by the governor's appointment (in Tennessee), and not by the county court, which would act were the office a county one. State v. Glenn, 7 Heisk. (Tenn.) 472. See also State v. Leonard, 86 Tenn. 495; compare State v. McKee, 8 Lea (Tenn.)_ 24; Wilson v. Wiltz, 32 La. An. 688; Respublica v. Dallas, 3 Yeates (Pa.) 300, 316. 2. Landon v. Mayor etc. of New York, 49 How. Pr. (N. Y.) 218. 223; Freedman v. Sigel, 10 Blatchf. (U. S.) 327. 3. Fisher v. Hepburn, 48 N. Y. 41; People v. National Trust Co., 31 Hun (N. Y.) 20. Compare State v. Lazarus, 33 La. An. 1425; State v. Vorhies, 34 La. An. 99. 4. Want of Jurisdiction.-The rule that a party cannot appeal from one judge to another of co-ordinate jurisdiction by motion for relief from an order or judgment, does not apply where the 5. Stay of Execution.-Schlandedin 6. Louisiana.-The district judge has discretion to fix fee of expert in a criminal case. reviewed on certiorari. State v. Cole, His decision will not be 33 La. An. 1356. 7. Madden v. Fielding, 19 La. An. 8. Com. . Pyle, 18 Pa. St. 519, 505. 521. 9. Sparks v. State, 59 Ind. 82. 10. Cooper v. Gallraith, 3 Wash. (U. S.) 546. WASHINGTON, J., charged the jury: "It may be indiscreet in him the dignity of his station to speculate to do so; and it may be unbecoming in purchases of this sort, unless under But we do not understand very peculiar circumstances. that the plaintiff gave any judicial opinion respecting the sales of this property His direction to Matters of Practice. JUDGE. 6. Property Under Court's Control.-Custody of records is a ministerial duty. Where it is the duty of a probate judge to deliver them up, he may be compelled to do so. But where the title to the office is the real question, the parties will be remitted to quo warranto.2 Bill of interpleader for property of county, if maintainable, must be in the county's name, not in that of a probate judge.3 Trust funds are not to be deposited, by a surrogate, with a private banker.4 III. POWERS AND DUTIES IN MATTERS OF PRACTICE-1. Attendance at Trial. A judge of oyer and terminer absenting himself for a day in the course of a murder trial thereby disqualifies himself from further sitting. If he sits again, it is error. The Arkansas court permitted a judge presiding in a civil case, and who, after the evidence had closed and the charge had been delivered, then fell sick, to retire, a special judge being appointed from the bar.6 2. Appeals and Bills of Exception. In the absence of statutory provision, the approval of the judge who presided at the trial is indispensable to the statement of facts, in order that they shall the sheriff to sell this land for hard money was not given judicially, nor could it be." 1. Where complainant shows a prima facie title, and his right to the office is not the subject of the contention, delivery of insignia and property will be required. Thompson v. Holt, 52 Ala. 491: State Y.) 317. See United States v. Pres- 12 Cush. (Mass.) 112. Of the prima facie title, the governor's commission is the best evidence. Hill v. State, 1 Ala. 559; Brightly's Lead. Election Cas. 314, note p. 319. On it the court will rest, and for the time being award the property of the office to the holder of this title, without adjudicating whether the relator has or not the actual title. People v. Kilduff, 15 Ill. 492; People v. Head, 25 Ill 325; Crowell v. Lambert, 10 Minn. 369; State v. Sherwood, 15 Minn. 221; State v. Churchill, 15 Minn. 455; People v. Miller, 16 Mich. 56; State v. Governor, I Dutch. (N. J.) 331; Thompson v. Holt, 52 Ala. 491. 2. Thompson v. Holt, 52 Ala. 491; 3. Patrick v. Robinson, 83 Ala. 575. 11 5. People v. Shaw, 63 N. Y. 36; McCann v. People, 3 Park. (N. Y.) 272; and see People v. Lake, 2 N. Y. 358. The prisoner cannot waive this error. HARDIN, J., in the department court. Shaw v. People, 3 Hun (N. Y.) 281, citing other New York cases. On the duty of constant attendance in a capital case, see also Hayes v. State, 58 Ga. 35. In the course of a civil proceeding, BRONSON, C. J., observed that something must be trusted to the judge's whether he could safely discretion leave for awhile. Oakley v. Aspinwall, 3 Com. (N. Y.) 547. Delegation of Power.-A judge cannot delegate his power; he cannot call attorney to take the bench. Davis v'. He must reWilson, 65 Ill. 525, 530. main on bench during argument to jury. Brownlee v. Hewitt, 1 Mo. App. 360; State v. Claudius, 1 Mo. App. 551. 6. Bullock v. Neal, 42 Ark. 278. But the bill of exceptions must be signed by the regular judge; for he it receive attention on appeal.1 It has been held that a bill of exceptions must, and could be, signed by the judge who tries the case, although he has gone to another circuit, or the term of court has expired,3 and even though the judge be a special judge.4 In North Carolina, it was held that if the party seeking a new trial has not been guilty of laches, the supreme court will, ex debito justitiæ, order a new trial if the judge who tried the case has gone out of office without having settled the bill. This accords with the English practice. A similar decision was made in the United States circuit court. For a bill of exceptions signed by another than the trial judge, the latter's official term having expired, is a nullity, with or without consent of the parties.8 In Wisconsin, it has been held that the trial judge shall settle the bill even after he has retired from office.9 This, however, is exceptional.10 In Florida, the successor may act,11 and the court of that State recognized power in the trial judge to order allowance of time after adjournment for settling a bill of excep was who presided when it was taken. Bullock v. Neal, 42 Ark. 278. 1. Myers v. State, 9 Tex. App. 157. A statement of facts agreed to by attorneys, without the signature and approval of the judge, cannot be considered on appeal. There "is no reason why such a statement approved by a judge who did not preside at the trial should have any greater weight." Myers v. State, 9 Tex. App. 159. See also Ohms v. State (Wis.), 10 Cent. Law Jour. 465. See generally BILL OF EXCEPTIONS, vol. 2, p. 221. 2. Ex parte Nelson, 62 Ala. 377; here the same term was still open, being held by another judge. 3. Watkins v. State, 37 Ark. 370; Cowell v. Altchul, 40 Ark. 172. 4. Authorities in preceding note. Bacon v. State, 22 Fla. 46. 5. Isler v. Haddock, 72 N. Car. 119; State v. O'Kelly, 88 N. Čar. 609, 611. 6. Newton v. Boodle, 54 E. C. L. Rep. 795. 7. U. S. v. Harding, Wall. Jr. (U. S.) 127. 8. Connelley v. Leslie, 28 Mo. App. 551; Cranor v. School District, 18 Mo. App. 397. The statute contemplates that the matter of exceptions comes under the personal observation of the trial judge, and that the error is called to his attention at the time and the exception then and there taken. Cranor v. School District of Gentry, 18 Mo. App. 397; Consaul v. Liddell, 7 Mo. 250; St. Louis etc. R. Co. v. Corser, 31 Kan. 705. Compare authorities cited, infra. See generally BILL OF EXCEPTIONS, vol. 2, p. 221. Fraud.-Certificate of case made cannot ordinarily be attached on appeal. State v. Todd, Ohio 351; Shepard v. Peyton, 12 Kan. 616; State v. Noggle, 13 Wis. 38o. But in some cases of conspiracy where the judge's certificate is fraudulent, the supreme or appellate court may probably disregard it; if disregarded, it should be so in toto. souri etc. R. Co. v. Fort Scott, 15 Kan. 435, 480. Where signature of judge to certificate is obtained fraudulently, see Kansas Pac. R. Co. v. Simpson, 11 Kan. 494. Mis Louisiana-Where a New Orleans district judge is absent, another district judge of that parish can grant appeal from a judgment rendered by the absent judge. Austen v. Scovill, 34 La. An. 484. California.-Settlement of statement for appeal should be made by a successor who heard and denied motion for new trial, and not by the judge who tried the case. Cummings v. Conlan, 66 Cal. 403, construing California Code Civ. Proc., § 653. 9. Oliver v. Town, 24 Wis. 512; Fellows v. Tait, 14 Wis. 156; Davis v. Menasha Village, 20 Wis. 194; Hale v. Haselton, 21 Wis. 320. 10. RANEY, J., in Bacon v. State, 22 Fla. 46, 50. 11. Hays v. McNealy, 16 Fla. 406. Where the judge's sickness disables him, a judge of another circuit, in Florida, has power to act. Florida Code, tion. A judge may be empowered by statute to make finding in appeal cases tried before him, though his term of office has ceased.2 3. New Trials. It is the duty of a judge who tries a case to go through with it, and hear a motion for a new trial if made. He cannot refuse to hear such motion, or transfer the case and motion to a colleague.3 In Texas, the successor, in a proper case, can act.4 4. Opinions and Orders.-Orders, decisions, etc., have no dependence upon the accidental place of their preparation or signing, but upon the filing. The announcement of opinion need not necessarily be by a judge in commission.6 ch. 373; Bowden v. Wilson, 21 Fla. Stewart v. Jones, 9 Tex. 469; Mussina 165. 7. Moore, 13 Tex. 7. 1. Bacon v. State, 22 Fla. 46. 2. Johnson v. Higgins, 53 Conn. 236; Connecticut act 1885, March 31st. Kansas.-The Kansas statute authorizes signing and settling of case made by a judge after his term of office has expired, only when such term expired during a time fixed for such settling. The statute must be followed, and if no time is fixed, the judge cannot make and settle a case after his term of office has run out. St. Louis etc. R. Co. v. Corser, 31 Kan. 705, 707; Taylor v. Mason, 28 Kan. 381. In Thurber v. Ryan, 12 Kan. 453, the judge certified the case made within the time fixed therefor. It was accordingly validly done, although his term of office was at an end. Parties themselves cannot extend time for making case. Ætna L. Ins. Co. v. Koons, 26 Kan. 215. Judge pro tem. may settle and sign such a case, though the term at which the case was tried has expired. Missouri etc. R. Co. v. Fort Scott, 15 Kan. 435, 475. And the statute in Kansas enabling judges to sign, etc., after their term has expired is to be applied liberally, and covers the case of a special judge just mentioned. Missouri etc. R. Co. v. Fort Scott, 15 Kan. 435, 476. And where a county was detached to a new district, so that it lost the old judge, the statute was held to apply. Thurber v. Ryan. 12 Kan. 453. 3. Motions for New Trials-Voullaire v. Voullaire, 45 Mo. 602, holding that an unjust and scurrilous attack upon the judge by the newspapers will not af ford him legal reason to send the cause to another judge. 4. Edwards v. James, 7 Tex. 372; citing Gross v. McClaran, 8 Tex. 341; Independently of statute, a judge has no power to allow a motion for a new trial after he has gone out of office. Griffing v. Danbury, 41 Conn. 96. 5. Comstock v. Quicksilver Mining Co. v. Santa Cruz Co. Court, 57 Cal. 625; Early v. Oliver, 63 Ga. 11. 6. Reiber v. Boos, 110 Pa. St. 594. Decrees, etc., After Expiration of Term. -A circuit judge, after the expiration of his term of office, filed his decree. He had heard the cause and had written and dated the decree before the expiration of the term, and both he and others were ignorant of the fact that his official term had expired. His term was not until successor chosen. Held, he was a judge de facto and that the decree was a valid decree (SIMPSON, C. J., dissenting). Cromer v. Boinest, 27 S. C. 436. See also Knowles v. Luce, Moore 109; Rex v. Bedford Level, 6 East 356; Gilliam v. Reddick, Ired. (N. Car.) L. 368; Brown v. Lunt, 37 Me. 423; Petersilea v. Stone, 119 Mass. 465; s. c., 20 Am. Rep. 335; Fitchburg R. Co. v. Grand Junction R. & D. Co., I Allen (Mass.) 552; McBee v. Hoke, 2 Spear (S. Car.) 138; Kottman v. Ayer, 3 Strobh. (S. Car.) 552. See infra, this title, DE FACTO JUDGES. But where there is no such mistaken impression as to the term of office not having expired, a decision and order filed by a judge after the expiration of his term of office is unauthorized, and will not support a judgment. Cain v. Libby, 32 Minn. 491. It is not enough that he had arrived at a conclusion before his term expired. Kissam v. Hamilton, 20 How. Pr. (N. Y.) 369; Ayrault 7. Sackett, 17 How. Pr. (N. Y.) 461; Putnam v. Crombie, 34 Barb. (N. Y.) 232. The legislature cannot invade the true and proper province of the courts and control the judges therein: Courts have held that the legislature cannot require judges to put their opinions in writing, or to give their opinion to either or both houses in matters not in that respect provided for by the constitution,2 or to syllabize their opinions for the official reports. Some courts, however, have complied with legislation of this sort. Of course a federal judge is not bound by State law requiring written opinions." 5. Adjournment of Court.-A judge may adjourn his court from day to day for rest, refreshment, etc.6 Order to adjourn may be by telegraph. After the officers of court have lawfully adjourned the same till next term, the judge cannot appear and hold court.8 6. Powers During Vacation. It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute. It has been intimated that unless legislation authorizes In Carli 7. Rhener, 27 Minn. 292. the judge filed his decision in writing the same hour but after his successor qualified, and in ignorance of the latter fact, and while he was still in possession performing the duties of office. He was held to be an officer de facto, and his acts valid. And where a judge continues to hold court as judge after his term has expired, it was held that his conduct could not be questioned in that case, as he was at least an officer de facto. State v. Brown, 12 Minn. 538. Motion to set aside the judgment is the proper remedy. Cain v. Libby, 32 Minn. 491; Grant v. Vandercook, 57 Barb. (N. Y.) 165, 175. 1. Speight v. People, 87 Ill. 595; Hawkins v. Governor, 1 Ark. 570. See also Griffin v. State, 119 Ind. 520 Reasons for opinions are sufficiently stated under act requiring them, if those essential to full disposition are given, though some points presented are not introduced. Lake Shore etc. R. Co. v. Cincinnati etc. R. Co., 116 Ind. 578. 4. See Respublica v. Doan, Dall. (Pa.) 89; Com. v. Addison, 4 Dall. (Pa.) 225; Case of Spring Garden Street, 4 Rawle (Pa.) 192. 5. Martindale v. Waas, 3 McCrary (U. S.) 108. Federal Judge and State Laws.Georgia Code, § 3248, prohibiting trial judge from expressing opinion on the facts in evidence, is not regarded in the federal courts. Hathaway v. East Tenn. etc. R. Co., 29 Fed. Rep. 489; Vicksburgh etc. R. Co. v. Putnam, 118 U. S. 545; Nudd v. Burrows, 91 U. S. 426. In Houston v. Williams, 13 Cal. 25, Mr. JUSTICE FIELD, speaking for the court, said: "If the power of the legislature to prescribe the mode and man- 6. WHITE, P. J., Powers v. State, 23 ner in which the judiciary shall dis- Tex. App. 42, citing Barrett v. State, i charge their official duties be once Wis. 175; People v. Central City Bank, recognized, there will be no limit to 53 Barb. (N. Y.) 412; Tuttle v. People, the dependence of the latter. No 36 N. Y. 431. In the case of Revel v. such power can exist in the legislative State, 26 Ga. 275, it was held that it was department or be sanctioned by any competent for the judge to adjourn his court which has the least respect for its court over to a future day or week, as own dignity and independence." Ap- he might see fit. proved in Vaughn v. Harp, 49 Ark. 160. See Coke's Rep., part 3, pref. 55. 3. Ex parte Griffiths, 118 Ind. 83. 7. A telegram to clerk is a "written order" sufficient to comply with statute. State v. Holmes, 56 Iowa 588; s. c., 41 Am. Rep. 121. 8. Garza v. State, 12 Tex. App. 261. 9. Judge's Powers in Vacation.-Blair |