NATIONAL HOME FOR DISABLED VOLUNTEER SOLDmRS f7. BUTLER.'
1:6\'rcuit Oourt, D. MaBlJachu86U8. January 12, 1888.)
JODGJC':"':A.PPOIl¢'nlENT-DlBABILXTY TO HOLD COURT-REV. ST. U.
Rev. St. U. Be § 591. enacts' thatwben any district judge is disabled from holqingcourt tpe circuit judge circuit in wbich the district lies maYaPpoint the judge of any otber district in the same circuit to discbarge the duo ties of. tbe disabled judge. and that the "appointment shall be filed in t4e clE'rk's office, and entered on the minutes of tbesaid,district court." etc. An appointment under section 596 was tiled in the office of the clerk of tbe cirCUIt court. ',Held, that it should have b'een tiled in tbe office of the clerk of the district court. but that the appointment was complete before filing, and that the failure to file as directed did not invalidate the appointment.
At On ,motion in arrest of judgment. , This action ,was brought by the National Home ,for Disabled Volun..: teer Soldiersflgainst Benjamin F. Butler. Tbe defendant moved inar..,. rest of judgment. (feorge P. Sanger, for plaintiff. , Eerljamin, F·. Butler and E. M. Joh'n8lm, for defendant. ,Covr, J.The claim tbat whopresided.at the trial was not duly I1oppointed for that purpose is based upon sections 591 and 596 of tbe Revised Statutes, wbich, so far as they relate to this question, are as follows:
59l.Wbere any district judge is prevented. by Rny disability, from holding Iinystate9 or appointed term of his district court, or of the circuit court in his distric.t inthe absence of the other judgps, l\J;ld that fact is made, to appear by the qi'rtilicate of the clerk, undl'r the seal of the court, to the circuit jUdge, or, in 'l1is absenre. to the eil'cuit jUllticeof t'he circnit in Which the district lies,8uel'rcircuit judge or justice iuay, inn bis jtidglnent thepl1bllc interests so requtre.designate and appoint the judge: oj any othp! district in same circ:uit tp hol« saitl courts. and to disclmrgeaU the jUdicial dutie-so! . tbejudge so,di!l,llbled, during such disabilIty. Such appolntoU'nt shall be filed il! the clerk's and entered on the minutes, of the said district court, and a. certified copy thel:eof, under the of the COUI't. shidl .be-transmitted by thedistrict clerk to the judge so designated and appointed. to '
NATIONAL HOME FORDISABLEI) V<lLUNTEER SOLDIERS V. BUTLER.
"Sec.. 596. It shall be the duty of every circuit judge, whenever in his judgment the public interest so require.'l. to designate and appoint. in the manner Hnd with the powers provided.i ll section five hundred and ninety-one, the district jUdge of any jUdicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same circuit. ... ... *",' ' ·
, The facts are that in pursuance of section 596 the circuit judge designated. and appointed Judge CARPENTER to hold the term of the circuit -court in aid of the district judge for this district by an instrument in writing"duly signed, which instrument was filed in the office of the clerk ,of the circpit court. The defendant claims that the instrument of ap, pointment should have, been filed in the office of the clerk of the district -court, and that the failure so to file it makes the appointment invalid and of no effept, so that the judge had no authority to preside in the circuit -court. It may be !1ssumed, the first place; that the 'appointment must be made or evidenced,by iWriting, since it is directed that the "appointment ,shall be filed in the clerk's The provision in section 591 clearly provides, I,thihk l that the filing shall bein the office trict court. TQe words" of said court" lindt the words ," "office" as well as the. word" minutea." It therefore remains to ascertain , :the meaniqg al)<I;scope oft116 words" in the maDner ·. * * in hundred and I pinety-oqej" or, in other words, to decide ;what thlngssball be doqe grdeJ,' to, 'Comply with the requirements of ,:sectionq96. , it \yould har4lybe dQu,bted tllat, an,appointment ·under section, 596 shoul(i in writil;lg; still it seems to be eviq.ent that the language of the appointlpent should be different U 5\)1 -the may be to hold both courts, while under section 596 it .seems <!lear,tbaqhedesigpation should the judge appointed wllS. to pold the circuit or the district court, .and whetbel' ,be was ..to hol,Cl it inpla.ce of ofthe district or in aidof him.' There lllight l;ln, argq.JOent that. thewords "in the manner provided,"etc., llS to the place of filing the paper, to mean '!ill the ,should not only the words of the appointment, but also the pla,ce where .it shoul<;1be filed, shQuld vary to the circumstances and the convenience of the case,· the plaintiffs contend, there must lie some variation to meet the circumstances -of the case; and perhaps, as to the place of filing, I might safely act on .a presumption that the intention of congress was to provide for filing the papers in what is obviously the most conveuient place, were it not for ;:one pro\lisioD':insectionS\)L Ifwill 'be seen that a judge appclinted under section 591 may sit in the circuit although his appointment is filed only with the clerk'of the district court. There is therefore no reason to think that the intent of the legislature,will be contravened by "Stlchapractice under sectiOn' 596; I am, therefOre; inclined tothink, aJthoughin:, my view it 'is not necessary absolutely to decide! that the ddesignation.spould have been filed in the office of the clerk of the district -court. But T am of opinion :that the failure to file the paper-in the proper office pi.
rectory only. The language is that the" appointment" shall be filed, anq this language alone, if there were no other considerations on either be held sufficient to imply that the appoin¥nent is complete before.it is filed. But the substantial ground of my conclusion is that the filing of the paper is not of the essence of the act to be done, but relates solely to the manner of procedure. The essence of the act is the determination and decision on the part of the circuit judge-First, that the public interest requires that ajudge be designated; and, secondly, that a particular judge is selected for that purpose. The act of putting this on paper and signing it,if signature be necessary, is perhaps the last and essential element of that determination. The filing of the notice seems to have no office except to notify the clerk and the judge that the . determination has been made. A,gaihst this view Of the scope and intent of the statute nothing can be found in the. words of the statute itself. There is no prohibition against 'procedure otherwise than is directed. The provisioIithatthe circuit judge may "designate and appoint" is complete in itself, and the provi£ion as to filihp: the appointment is afterwards added in separate sentences. There is nothing in the words or in their collocation which obstructs the separation of those provisions which appear to me anddirectory ftom those which are essential and mandatory. If it were held the filing in the Clerk's office is essential it would Seem that there . could be, no: escape from the conclusion that the sending of l:l. copy to the designated judge is also essential. Such a conClusion would,as'it seems to me, be absurd. Forexample,:tliere might be il. case in which the circuit jUdge had made his determination and appoinfment, had reduced his appointment to writing, and· delivered it' to the judge therein appointed, and that judge had himself delivered the paper to the clerk of the distnllt court,and the clerk had filed and entered the same, and yet the authority of the judge would be incomplete because the clerk had not handed him in. return a certified copy of the' paper of appointment. This cOpy, it is observed, could serve no purpose except to notify him 'of that which he already knew, since there is no provision that he shall preserve it by way of evidence ofthe facts. I cannot think it safe to folIowan argument· which leads t6such conClusions. The motion 'in arrest of judgment is overruled.
&,P.Ry. Co., (DEHONEY, Intervenor.)l
.i'· . : ' . - ..
,Th,e filed a claim against defendant company for damages. The evidence ,w,!ijl J;lQt. suffici,ently certain as to the extent of the damage. Held. that, should have made his case iLudthe extent of his damagereaf(in&blycertain by proof. hisex'ceptioris to tlie master's findings agaipsthis ,claim should beoverroled, and the master's report confirmed.
IReported'l:>ffiililes B. 'Stafrord, Esq., of the New Orleans bar.
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