
    THE PEOPLE against THE ALBANY AND SUSQUEHANNA RAILROAD COMPANY.
    
      Supreme Court, Seventh District; Special Term,
    
    
      January, 1870.
    Appeal.—Waiver of Irregularity.—Motions and Orders.—Scandalous and Impertinent Matter.
    Irregularities in a judgment, which were known to the counsel before taking an appeal from the judgment, are not ground for setting aside the, judgment on a motion subsequently made.
    As grounds of relief on motion they are waived by taking an appeal before moving.
    The case of Olumpha- v. Whiting (10 Abb. Pr., 448), explained.
    Counsel have not a right to be present at the finding of facts by the judge before whom a cause hag been tried without a jury, or si. the settlement of such findings; but the judge may, as is often done, direct the successful party to draw up the findings, and allow the other party to attend at their settlement.
    The fact that he allows the successful party to be present, does not give j' the other a right to be present. |
    The only notice which the successful party is bound to give his adversary, after the cause is submitted to the judge for decision, is written notice of judgment entered.
    
    
      Matter presented in the motion papers of a party may be struck out as irrelevant, scandalous, &c., although the other party has read counter-affidavits as to the same subject.
    Motion to set aside the judgment in the action, and all subsequent proceedings.
    About 2 P. M., of December 31, 1868, Mr. Justice E. i Dabwih Smith, before whom this cause was tried without a jury, filed in the Monroe county clerk’s office his findings of facts and conclusions of law, having before that delivered an opinion (reported in 7 Abb. Pr. PT. iS., 265) on the questions involved. Immediately thereafter a judgment in accordance therewith was entered, by which, among other things, it was adjudged that those known as the “Ramsey board” were duly elected directors, and that they and the other defendants,, except Herrick and Burns, recover costs against the defendants comprising the Fisk-G-ould board ; that the plaintiffs recover costs against the company; that all suits and proceedings involving the matters litigated in this suit be perpetually stayed; that the board declared elected be let into immediate possession; that the receiver ad interim forthwith deliver over to them all property and effects in his hands belonging to the corporation, and referring it to Hon. Samuel S. Seldem, to pass the receiver’s accounts, and ascertain and report what would be a reasonable extra allowance to the defendants to whom costs were awarded. When Judge Smith was about to file his decision, an application was made to him by Mr. Martindale, counsel on behalf of the unsuccessful defendants, for a stay of proceedings to enable them to be heard on the settlement of .the findings, and to perfect an appeal, which motion was denied.
    
      As soon as this judgment was entered, the "board declared elected met at Albany, and took formal possession of the offices and property of the company.
    About five o’clock that afternoon an ex-parte order, granted by Judge George G. Barnard, was served upon the attorney-general and the attorneys for the prevailing parties, commanding “ that all proceedings upon the decision of Mr. Justice E. Darwin Smith be stayed until the findings of facts and conclusions of law of said justice therein be served upon the attorneys for all the parties therein, together with notice of settlement thereof; and further ordered that judgment be not entered herein until the settlement of such findings and conclusions upon due notices of settlement to all parties therein.” And at about 3.15 p. m. the receiver was telegraphed from New York by Deputy Attorney-General Hammond that a stay of proceedings had been served upon the attorney-general, and at about 11 p. m. he was served with a copy of the above order.
    At two o’clock of the morning of January 1, a.certified copy of the judgment was delivered to the receiver.
    ' During the forenoon of January 1, another ex-parte order, granted by Judge Barnard, was served, staying all proceedings under the judgment, until an order should be entered upon a motion to set it aside. And an appeal was perfected, and notice thereof was served.
    In the mean time, the receiver surrendered the keys of the vaults of the company to Mr. Ramsey, in pursuance of an order made by Mr. Justice Peckiiam, in a summary proceeding instituted to compel the surrender thereof.
    In addition to affidavits showing these facts, an affidavit of Mr. Martindale was read on the present motion, setting forth certain inquiries he had made of .Judge Smith as to his decision, before it was known what it would be, and it was claimed that he and his clients had been misled by something that Judge Smith then said, and that, but for that and a telegram that Mr. Martindale sent to Field and Shearman, an order would have been obtained staying the entry of judgment.
    The affidavit of Mr. Martindale here referred to, alleged in substance that on hearing that the opinion of the judge would be soon made public, he sought an interview with him, and expressed to him the expectation that his clients would appeal if the decision should be adverse to them ; and the opinion that in either case it would be proper to have the findings settled in presence of both parties ; that to this course the judge assented, and informed deponent that they should have opportunity to be present. The affidavit further stated that he telegraphed this information to the attorneys for the unsuccessful parties; but that next day the findings were settled by the judge, with the assistance of the counsel for the adverse party, and without giving the unsuccessful party such opportunity.
    This settlement of the findings took place in the chambers of the • justice, at the court house, where special term and chambers business had been usually transacted by him.
    The affidavit of Mr. '■ Martingale alleged, in effect, that it took place in private, and that the door was locked, and the judge, came out when deponent knocked ; and an affidavit of another witness to similar effect was produced.
    This was denied by the affidavits of Messrs. McFarland and'Moak, who stated that they went «publicly to the judge’s office, and found him engaged in hearing a motion, after disposing of which the findings were settled. Another affidavit was also produced, denying that the door was locked ; another explaining that the lock was imperfect, and sometimes caught.
    Mr. Martindale’s affidavit further stated that learning thus that the findings-were." in course;of settlement, without the unsuccessful party having opportunity to be heard, he applied to the judge at a subsequent hour, on an affidavit, for a stay of proceedings, and for leave to be heard, which were denied, as above stated.
    Mr. Thomas G. Shearman made an affidavit, in which, among other things,'he says : “I have examined the opinion of Mr. Justice E. Darwin Smith, in this case, and have no doubt that it can be; shown to the general term to be in every material respect erroneous, . either in fact or in law.”
    And the following certificate was read :
    “We hereby certify that we have examined the opinion of Mr. Justice E. Darwin Smith in this cause, and that in our judgment it is in every material part erroneous, either in fact or in law. January o, 1870.
    “John H. Martindale, “George C. Barrett,' “David Dudley Field, “Amasa J. Parker.”
    Upon these facts the unsuccessful defendants moved to set the judgment aside, and that the receiver be directed to retake the property of which he was originally made receiver, upon the following grounds : 1. That the alleged [judgment determined no rights and authorized no proceeding except a reference, without the further direction of the court. 2. That an appeal had been duly taken and perfected, and that orders had been duly made' and served staying proceedings. 3. That the judgment was not a final determination of the rights of the parties, and was entered without notice, and awards costs without stating the amount; that its recitals are incorrect; that its findings of facts and law are , insufficient, and that it does not embrace all the issues in the cause.
    And they also moved that the decisions and findings be sent back to the judge who tried the cause, ior reexamination and re-settlement.
    The counsel on the part of the Ramsey party read affidavits differing in some respects from the statements in Mr. Mavtiñdale’s affidavit, and insisted, that the moving affidavit of Mr. Martindale, as to what had transpired with Judge Smith as to his decision and the affidavit of Mr. Shearman, and the certificate of Mr. Field and others, as to the correctness of Judge Smith’s opinion, were irrelevant, impertinent, and scandalous, and moved that they should, for that reason, be stricken out, and they submitted a brief prepared by Mr. Charles Tracey on that point, and the counsel for the moving party insisted that the court should cause his “brief to be returned to" him with befitting admonition and rebuke.”
    
      David Dudley Field, Amasa J. Parker, and John H. Martindale, for the motion.
    I. The proceedings taken by the Ramsey directors upon the alleged judgment, should be set aside, and all acts done under it should be undone. (1.) The judgment did not contemplate the surrender of the road by Mr. Banks to the Ramsey directors, :till5- after the adjustment of his fees and charges. These were not adjusted when he was dispossessed, and have not been yet. (2.) But, bad the alleged judgment contemplated immediate execution, still, if it is to be regarded as a judgment, the appeal and undertaking stayed all proceedings upon it ¡(Code, § 348 ; People v. Commissioners of Milton, 25 How. Pr., 257; Howe v. Searing, 5 Bosw., 684; Read v. Potter, 11 Abb. Pr., 413). The case of Welch v. Cook (7 How. Pr., 173, 282) does not justify proceedings in the present case, in defiance of the appeal. The application for the books and papers in that case was granted by Mr. Justice Masoh, upon the ground that the judgment executed itself eo instanti. In the present case, the acts of Ramsey and his party are acts “ done by the authority and direction of the court,” if authorized at all. The proceedings of Banks, in transferring the property and assets, and of Ramsey, in taking immediate possession of them, are proceedings “done by the authority or direction of the court.” The acts by which they obtained the books and papers were a violation of the stay ; and the order of Mr. Justice Peckham: was without jurisdiction under the Code (§§ 437-8), because Receiver Banks was not a defendant, nor did the books and papers relate to the office from which the party was excluded ; and under 1 Rev. Stat., 124, §§ 50-55, because {a.) those provisions apply only "to public officers of the State; (c.) they apply only to boolcs and papers; (6.) they apply only to a case where a person has been “ removed from office, or the term for which he shall have been elected or 'appointed shall expire“ and (d.) only to cases of delivery to ‘his successor- in office.” Moreover, the first order to show cause in that proceeding could not Jbe made out of the seventh district, or a county adjoining Monroe {Code, § 401). (3.) The paper entered as, and called, a judgment, is not a judgment, but at most an order for judgment. If reserves several questions,, including costs. This is conclusive that it is not a judgment (Chittenden v. Missionary Society, 8 How. Pr., 327; Tompkins v. Hyatt, 19 N. Y., 534; Cruger v. Douglass, 2 N. Y. [2 Comst.], 571; Harris v. Clark, 4 How. Pr., 78). The rights of either board could not be determined by an order (Code, § 271). (4.) Whether a judgment or an order, the stays prevented its execution. i
    II. The alleged judgment should not be allowed to stand. (1.) The instruction as to judgment in the decision is : “Let a final judgment be entered,” stating its provisions in general terms, and awarding costs ; but two things are left to be first ascertained; one is, the amount of extra allowance to be added to the costs, and the other is, to which of the defendants they are to be paid. Mow, as it is impossible to enter íí a final judgment” till these things are ascertained (Chittenden v. Missionary Society, 8 How. Pr., 327), the decision, taken altogether, is to be construed as specifying what that judgment shall be, when all the elements for completing it are obtained ; that is, after the referee has reported them. (2.) The entry of judgment under the circumstances was in bad faith on the other side. (3.) The paper entered is merely an order (Code, §§ 245, 280; Chamberlain v. Dempsey, 14 Abb. Pr., 241; 15 Id., 6). (4.) An order cannot determine the rights of the parties in this action. (5.) If it be a judgment, it should be set aside for irregularity. It was entered without notice. Such was the rule in the court of chancery (Whitney v. Belden, 4 Paige, 140; Hargrave v. Hargrave, 3 Macn. & G., 348; Davenport v. Stafford, 8 Beav., 503, 511); and the Code retains the then existing practice, when not otherwise provided (§ 469). And see Wood v. Lambert (3 Sandf., 724). (2.) Another irregularity of the alleged j ndgment is, that it does not pursue the decision. The judgment “ shall be entered” according to the decision {Code, § 267), which means the findings of fact and conclusions of law; and not the direction, which follows the legal conclusions. When the judgment does not thus conform, as it does not in the present case, it should be set aside. And our remedy is by motion, not by appeal (Ingersoll v. Bostwick, 22 N. Y., 425; Johnson v. Carnley, 10 N. Y. [6 Seld.], 570; Rogers v. Hosack, 18 Wend., 319). (3.) The direction must follow the legal conclusions. (4.) This judemen" provides for an allowance, though none was moved for.
    III. The decision should be set aside. (1.) Because so entered. (2.) Because it does not determine all the issues. The validity of the two parcels of stock, one of three thousand shares, and the other of nine thousand five hundred shares, was distinctly put in issue. Not to decide on it was irregular, and a mis-trial (Chamberlain v. Dempsey, 14 Abb. Pr., 241; Griffin v. Cranston, 5 Bosw., 658; Burger v. Baker, 4 Abb. Pr., 11; Pratt v. Stiles, 9 Id., 150; 17 How. Pr., 211; Nelson v. Ingersoll, 27 Id., 1; Sharp v. Wright, 35 Barb., 236). The judgment ordered the suits respecting that stock to be discontinued; and there could be no reason for such a judgment, but that the court had in this case passed upon the questions involved in those. (3.) Justice cannot "be done to the parties on the present finding ■ of facts (Chamberlain v. Dempsey, supra). (4.) "The findings as to the title to the offices is indefinite. (5.) That as to the list of stockholders is hypothetical. (6.) The fifth conclusion of law appears to have been canceled, indicating that the paper has been tampered with. (7.) No legal provision is made for completing either the decision or the judgment. (8.) It is irregular for referring the question of costs (O'Brien v. Bowers, 4 Bosw., 657; 10 Abb. Pr., 106).
    
      Matthew Hale, Henry Smith, and George F. Danforth, opposed.
    
      
       Subsequently to this decision, section 267 of the Code of. Procedure, quoted in the opinion, was amended. It formerly required that “ Judgment upon the decision shall be entered accordingly.” It now reads, <• Judgment upon the decision shall be entered accordingly, four days thereafter " (Laws of 1870, ch. 741).
    
   Johnson, J.

The parties to this motion are all defendants in this action, and it will be most convenient to designate them as the Church party and the Ramsey party, respectively. The judgment which this motion seeks to have set aside was entered, and the judgment roll filed on December 31, 1869, about two o’clock in the afternoon, as appears from the papers. This judgment was in favor of the Ramsey party, and against the Church party. On the same day, and after said judgment had been entered, the counsel for the Church party residing at Rochester, where said action was tried and judgment entered, caused a notice of appeal from said judgment to the general term of the supreme court to be prepared, and also an undertaking, in due form of law, and the same were served in due form upon the attorney for the Ramsey party and upon the attorney of the railroad company, on January 1, 1870, and within twenty-four hours after the entry of said judgment, and the said appeal was thereupon perfected. This appeal, as is shown by the moving papers, _was brought in good faith by the parties appealing, who intend to prosecute the same to a determination at the general term of this court, and is now pending.

This motion, to set aside the judgment for irregularity, was not made until several days after the appeal to the general term was perfected. The notice hears date January 3, 1870, and the principal affidavit on which such motion is founded, was not made, or was not sworn to, until the 4th of the same month. The motion papers were, of course, served after this, though I do not find the precise date of the service among the papers. It^appears very clearly_and plainly from the moving~papers,~and, indeed, the contrary is not pretended, that the counsel for the moving party knew, and were fully aware, of all the acts and omissions on the part of the attorney and counsel of the Ramsey party, in whose favor the judgment was rendered and entered, before and at the time such judgment was entered, and before the appeal to the general term was brought and perfected.

Upon this state of facts all the irregularities complained of up to and including the entry of the judgment and filing the judgment roll, if such they were, ■ have been waived and cured by the appeal to the general term, and are no longer available to the party against whom the judgment is rendered. Conceding the purposes of this point, that the things complained of were' irregularities for which the judgment would have been set aside had the [defeated party taken advantage of them in due season, still having passed them by, and taken another and different step in the action, they can not now go back and take up these alleged irregularities, and have them passed upon as though they were still Open and available. They have each and all been waived, and forever cured by the appeal. It was an onward step -in the action, without regard to the irregularities, which were as well known to the moving parties then as now, and which placed all the parties in a new and different relation to each other. This principle "of waiver of irregularities in proceedings in actions, on the part of any party, who might have taken advantage of them had he chosen to do so, by moving in the action afterwards as though the proceedings had been regular, has "been so long established in practice, and is so well settled, that it admits of no doubt or question. The exception is that the waiver does not extend to irregularities of which the party was wholly ignorant when the subsequent steps were taken.

I shall not undertake to cite authorities on this question. The books are full of cases on the subject, and the principle is as old as the history of practice and proceedings by action. Had not the contrary doctrine been strenuously -contended for by the several eminent counsel of the moving parties, I should not have supposed that any doubt could have existed in the minds of the profession in regard to it. ,

The case cited and relied upon as containing a different doctrine is that of Clumpha v. Whiting (10 Abb. Pr., 448).

But that case, it will be seen, affords no countenance to the position contended for by the moving parties. In that case the plaintiff had entered a judgment and issued an' execution while an order to stay his proceedings was in force.

On March 2 the defendant moved, by an order to show cause, to set aside the judgment and execution for irregularity ; and on the 22nd of the same month, while the motion to set aside was still pending, and undisposed of, the defendant gave notice of appeal from the judgment to the general term. It was claimed in that case by the plaintiff, that the defendant had, by appealing,, waived the irregularity in the entry of the judgment, and issuing execution; but the judge at special term , held that the appeal in that case was no waiver of the irregularity, which the defendant had taken advantage of by motion before the appeal was brought, and which motion was still pending. This was a special term decision, "but I am of the opinion it is correct in principle.

The same rule has, I think, been applied more than once in-"this district, where the party after moving and-taking advantage of the irregularity, has brought his appeal to save that right also, and prevent the time for appealing from passing by, before the motion could be heard. This-gives a party the benefit of all the remedies which the law affords, if he is diligent taking his advantage in time.

i • But this is quite a different case. Here the alleged irregularities had not been noticed or taken advantage, of by motion or otherwise, until after they had been waived and cured by the appeal. It was then clearly too-late. The appeal had. consigned them all to the 11 dead past,” beyond recall or resuscitation.

This view alone disposes of all questions of mere irregularity in entering and perfecting the judgment, assuming that it became and was a perfect judgment, so far as to be reviewable upon appeal

I might safely rest this question upon this view, and should do so in any ordinary case. But this is a case of much more than ordinary importance, and it is perhaps due to it that it should not be allowed to rest upon a technical waiver of irregularities, if there is a better and surer foundation on which the judgment can stand.

Now, granting that every material allegation of fact in the moving papers is strictly true, there was no irregularity in the proceedings prior to, and including the entry of the judgment, whatever.

The counsel for the defeated party had no more right to be present at the finding of the facts by the judge, or to dictate, or have a voice in regard to what such finding should be, than he would have had to intrude'into the jury room, had the case been tried by a jury, and dictate to, or advise with tketii in regard to _ what should be their verdict. The assumption of such i a right is simply monstrous. Counsel have their day in the trial and summing up the cause. They have no right to any further hearing, until after the decision has been made, and rendered, as the law prescribes. When the trial is ended, and the cause submitted, the law devolves the duty of deciding it upon the judge before whom the trial is had, where the action is tried without a jury, and prescribes the form in which his finding and decision shall be rendered.

“Upon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately. Such decision shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly” {Code, § 367).

Any person who should attempt to interfere with the judge in the discharge of his duty after a cause has been submitted to him for his decision, and before the same is decided in the manner prescribed, would be guilty of a most grave offense.

If the judge, after he has decided the case in his own mind, desires any assistance in the clerical labor of drawing up the statement of facts and conclusions of law in conformity with his decision, he may doubtless employ any one to render such service. And this service is frequently, and I apprehend most commonly, performed by the attorney of the successful party, under the direction of the judge. In such cases he acts as the hand of the judge merely in drawing a paper. But no person has has any right, unsolicited by the judge, to be heard, or to act in any way whatever in making up the decision, even in form, much less in matter of substance. If the judge is in doubt as to how a particular fact should be found, he may, I suppose, open the case, and give the counsel for the respective parties a further hearing; though this, I apprehend, is seldom if ever done.

But certainly the duty of deciding both the facts and the law rests upon the judge alone. The counsel for the defeated party seem to have supposed that they had the right to be present and take part in the settlement of the decision which the judge was to make, and to be informed as to what was decided before the decision was made so as to "become final. But this is quite an erroneous view of their rights. The decision is the judgment of the court, and upon it the judgment in the action is to "be entered. If there are special provisions in the judgment, the judge may, if he thinks proper, order that the judgment "be not entered until the judgment or decree be drawn up and served upon the opposite party, and settled before himself or some other judge, in accordance with his decision. But nothing of this kind is necessary under our present system of practice. It rests wholly in the discretion of the judge. If he does not see fit to order it, no one can complain.

The decision was therefore regularly made,'’and the judgment thereon regularly entered, without any further or other hearing or notice, or service of papers or settlement. In-a case tried as this was, there is no such thing as a review of the trial or decision before judgment. There is no other mode of review than upon appeal after judgment {Code, § 268, subd. 3). This review, as to questions of law, is ■■ upon exceptions to the decision taken by the defeated party who may desire to appeal, within ten days after notice in writing, of the judgment.

The -review of questions, either of fact or of law? arising upon the evidence, or rulings on the trial, can only be upon a case or exceptions, made after notice of the judgment. This is the scheme for reviewing judgments and proceedings upon the trial, in all cases tried in /this manner. And it is the only way in which they can be reviewed, by the express terms of the statute (Code, § 268, subd. 3). The only notice the successful party is required to give to his adversary after the cause is submitted to the judge for decision, is notice in writing of the judgment after it has been entered, and this only for the purpose of limiting the time of the other party to except and appeal.

■ I do not design to elaborate this point, but intend to express a most emphatic opinion that there was no irregularity in the proceedings after the submission, up to and including the entry of judgment.

It is also claimed by counsel for the Church party that there is no judgment from which an appeal can be taken, and which can be reviewed on appeal. But this party have appealed and insist upon their appeal, and even complain that -steps were improperly taken in carrying out or executing the judgment after their appeal and undertaking had stayed all proceedings upon the judgment. The Ramsey party concede that the judgment is a final judgment, and the appeal properly brought. It is either a judgment or nothing. If it is no judgment, there is ho need of this motion. If it is a judgment, it is reviewable upon the appeal which is pending. Upon this question, I have no doubt that a final judgment has been rendered and entered, which is subject to the appeal already brought, upon the hearing of which all alleged errors of fact or of law may be brought up and reviewed and corrected, if found to exist..

It is also a part of this motion, that the receiver heretofore appointed in the action be requested to retake possession of the property of the company, and that the Ramsey party, who have taken possession, be ordered to restore the same to said receiver, or to some other receiver to be appointed.

This application is based upon two grounds : First, that there is no.final judgment entered; and, second, that the surrender was made by the receiver to the prevailing party, and possession taken by that party, in violation of a stay of proceedings upon the judgment then in force. The question of a final judgment has been already disposed of.

The other ground seems to be wholly unfounded in point of fact. The appeal from the judgment was not perfected so as to operate as a stay of proceedings until the next day after the judgment, was. entered ; and the Ramsey party went into full possession of the property the day before, under the judgment, after it had been rendered and entered. The first order of Justice Baenaeh, which was served on the 31st of December, late in the afternoon, was an order staying proceedings on the decision of Justice Smith and the entry of judgment thereon. But as the judgment bad been entered upon it, and the decision bad become effectual as a judgment before this order was served, such order was wholly ineffectual for any purpose when it was served. The next order of Justice Báehaed, staying proceedings under the judgment, was not served until the day following the entry of the judgment, and on the first of January.

In the meantime, and on the day previous, the Ramsey party, who had been adjudged to have been regularly elected directors, and to whom the custody and possession of the property and franchises of the company had been awarded, formally entered into and took possession by virtue of the judgment and under its authority. This was done almost at the moment the judgment was entered and the roll filed in the clerk’s office at Rochester. Their action was certainly exceedingly prompt, and may, perhaps, be said to have been' even nimble, but I am unable to see that it was, in any respect, irregular or unwarranted at the time. Having gone into possession regularly, under authority of the judgment in the action, they cannot be ousted ail'd compelled to surrender upon motion.

Whatever may be said in regard to the proceedings before Justice Peckham on January 1, to obtain possession of the key or keys from the receiver, it is certain that they are wholly immaterial on this motion.

The motion is not to restore to him the key simply, but the possession of the entire property of the company.

Whether all the issues have been passed upon, or all the facts found, necessary to sustain the conclusions of law upon which the judgment rendered is founded, will arise upon the hearing of the appeal.

I do not think those questions belong to this motion. But if they do, it seems to me there can be no difficulty on that score. I do not see what other finding of fact was necessary, or what other issue it became necessary to pass upon, when it is seen upon what point or ground of the controversy the decision and judgment are placed. ' It follows, from these views, that the motion to set aside the judgment must be denied.

A more unpleasant, but yet a most imperative duty remains to be discharged in regard to the papers on which this motion is in part founded. The counsel for the Ramsey party upon the argument, moved to strike out the affidavit of J. II. Martindale, giving an account of .'what had taken place at several interviews between himself and Judge Smith, before whom the action was tried, between the time when the cause was submitted to him for decision and the delivery of his written decision ; and also the certificate signed by four of the counsel for the Church party, certifying that they had examined the opinion of the judge given upon the decision of the case, and that, in their judgment, such opinion was in every material point erroneous, either in fact or in law. The motion to strike out these papers was placed upon the ground that they were irrelevant, impertinent and scandalous.

They then read as part of the opposing papers certain affidavits made by N. C. Moak and J. H. McFarland, counsel for the Ramsey party, and also of the two librarians at the court house, as to what took place between Mr. Martindale and Judge Smith at the portion of the intei views at which they were respectively present, giving in some respects a modified and different version of what took place at those interviews from that contained in the moving affidavit. i

The statement of the judge as to what took place at either interview, whether in the presence or absence of third persons, was not, and in the nature of things, could not be, produced.

The counsel for the Church party, in reply to this motion, contended that, inasmuch as the other side had read counter affidavits as to what had occurred at those interviews, so far as they could or chose to go into that question, they were not at liberty to insist upon the striking out of the moving affidavit.

This would, I" think, be a complete answer, if any ^ motion was necessary.

But no motion is netiessary if the papers, or any of them, are of the character indicated in the motion. The court will always see to it, without any motion, that no papers, not otherwise strictly necessary, are allowed to go upon its files or into its records which tend to discredit, degrade or defame one of its members.

The several counsel for the moving party, each for himself, in the most positive and emphatic manner, denied and disclaimed any intention or design whatever of impugning in any degree the motives of the judge, or of reflecting disparagingly upon his character or conduct in the matter contained in the affidavit.

These disclaimers may and should be, I think, accepted as conclusive upon the question of intention on the part of counsel. But they are verbal, merely, and do not, and cannot, operate to purge the papers of any offensive matter which they may contain. No one, I think, wholly uninfluenced by interest or by the heat and excitement of the controversy, can read the affidavit in question without perceiving at once, and "beyond any doubt or question, that the necessary and inevitable tendency of the several matters set forth in the affidavit is to disparage the judge, and to bring him into disrepute and disfavor, if not to challenge his truthfulness and integrity, in his official conduct.

The matters contained in the affidavit are altogether, irrelevant and immaterial to the merits of any question' involved in the motion, and no legitimate service can be served by placing the affidavit ripon the files. This practice of making motions in actions, founded upon an interview between the judge who tried the cause and the attorney or counsel for one of the parties to the action, is quite novel, at least in my experience upon the bench, and cannot, as it seems to me, be* too strongly discountenanced and condemned. In such a case the judge is, necessarily, wholly at the mercy of his interviewer. He cannot be heard," either to contradict a false statement which may be made, or to modify or correct one founded in mistake or apprehension. A sense of propriety, and respect for his station, higher and stronger than any law, must, of necessity, prevent him from making any statement whatever upon the subject. Aside from the mere impropriety of such a practice, which all unbiased minds will at once and instinctively detect and admit, it is fraught with the gravest and most serious dangers to the due administration of the law. It is calculated to affect not only the independence of the judge, but the freedom, impartiality and purity of the course of justice also.

It should, as it seems to me, never be tolerated, unless, indeed, in the most extreme and exceptional cases.

As respects the certificate in regard to the opinion of the judge, it has most clearly no- place upon this motion.

Even if it could be held to merit the unfavorable judgment pronounced upon it in the certificate, it was certainly not irregular in the judge to pronounce an opinion when deciding the case. There is no pretense that the opinion of the judge is open to a review on this motion, and I have not examined it to see whether it is sound or unsound. But if it is ever so unsound, it does not affect in the slightest degree the regularity oí the judgment, which is the only question here.

The opinion speaks for itself, and will be open to criticism and review upon the hearing of the appeal, but it is not here. The certificate on this motion is, at best, irrelevant and impertinent.

I must-, therefore, hold that the affidavit of J. H. Martindale, and all the other affidavits on both sides, touching the interviews, or any of them, between said Martindale and Judge Smith, together with the certificate in question, be stricken out, and taken from, the motion papers, and not allowed to be placed upon the files of the court.

The motion to set aside the judgment and proceedings thereon, is denied with costs.  