Johnson v. Bemis

¶1 By the Court

¶2delivering the opinion.

¶31. The motion in the Court below was to set aside the judgment and execution against the plaintiff in error, because, after granting a rule nisi for a new trial, returnable to the next Term with a supersedeas, the presiding Judge had, in vacation, when there was no order to that effect taken and entered on the minutes, considered and dismissed the rule, and directed the execution to issue. This motion was refused by Judge Warren, and hence this writ of error. We think the motion to set aside the judgment and execution, ought to have prevailed. The order at Chambers to dismiss the rule, and directing the execution to proceed, was irregular and void, and the supersedeas was not for that reason thereby dissolved. The supersedeas was operative until the rule for anew trial was legally disposed of. We have already decided this question.

¶4[2.] We have held, and now hold, that applications for new trials must be made at the Term when the judgment is rendered and entered upon the minutes of the Court. And that rules for new trials may be made returnable in vacation, and then heard and determined, when an order to that effect is taken at the judgment Term and entered upon the minutes, and then only. Grady vs. Hightower, et al., 1 Kelly, 252. In this case there was no order entered on the minutes to hear and determine the rule in vacation — on the contrary, the rule was, made returnable in Term. It is true that there was an entry on the bench docket, made at the return Term of the rule, to the effect that the Judge would take time to consider of it, and write out his opinion by Christinas,

¶5*159[1.] An entry oii the bench docket is no part of the record— that docket we view in the light of a niemorandum for the convenience of the Judge and nothing more. So determined by this Court in Bryant, guardian, vs. Owen and wife, 1 Kelly, 355.

¶6It appears, further, from this record, that at the time when application was made to set aside this judgment and execution, an order was passed directing the order of the Judge (Taylor) at Chambers, dismissing the rule nisi, and also the entry on the motion docket before referred to, to be entered on the minutes, nunc pro tunc. This order could not cure the irregularity. Judge Taylor had no authority in this case to pass the order in vacation dismissing the rule and directing the execution to issue. It was illegal and void. It could not be made legal and valid by an ex post facto amendment of the record. And as the entry on the motion docket was no part of the record, at any time, it could not be made so by an order nunc pro tunc. An act', wholly without authority, cannot be sanctified by subsequently doing what, being done antecedent to it, would have given authority for that act)

¶7Let the judgment be reversed.