Statutes authorizing judges to hold courts in districts. other than those for which they are elected are valid in

and a circuit judge, or a district judge, or by a circuit judge and a district judge.' Sections 652 and 693, Rev. Stat. U. S.

66

'It was early decided that a district judge could not sit in the circuit court on a writ of error from his own decision (U. S. v. Lancaster, 5 Wheat. 434), and by chapter 20 of the act of the 2d of April, 1852 (10 U. S. St. 5), embodied in section 592 of the Revised Statutes, it was enacted, in reference to judges assigned to hold court in districts other than their own, under that statute, that no such district judge shall hear appeals from the district court.' But by the later act of March 2, 1867 (chap. 185, sec. 2, 14 U. S. 545), it was provided that a cause appealed from the district to the circuit court might, by consent of parties, 'be heard and disposed of by the circuit court held by the district judge,' in the absence of the associate justice allotted to the district. This act, with some others, is incorporated in section 614 of the Revised Statutes. This act, the supreme court say, was enacted 'in order to prevent failure or delay of justice.' U. S. v. Emholt, 105 U. S. 414. Under the pro

visions of section 614, a district judge holding the circuit court, sitting alone, may, by consent of parties, hear and decide an appeal or writ of error from his own decision. If the district judge of the district, when holding the circuit court, may hear and decide an appeal or writ of error from the district court by the consent of the parties, undoubtedly the district judge assigned to hold the circuit court in that district may do the same. The assigned judge is, as we have seen, invested with all the powers and jurisdiction of the judge of the district. This includes the power to hear and decide, by consent of parties, any cause pending in the circuit court on appeal or writ of error from the district court. It would be a singularly anomalous condition in the law if the district judge of the district, holding a circuit court, could, by consent of the parties, hear an appeal or writ of error from his own decision in the district court, and a district judge of another district, appointed to hold the same circuit court, could not, by consent of the parties, hear appeals and writs of error from the decisions of the judge of that district. There would seem to be more reason for denying the exercise of this appellate jurisdiction to the judge who decided the case below than to one who had no previous knowledge of the same. The parties have a right to have their appeal or writ of error heard by the circuit justice or the circuit judge, and to have their cause continued until such a hearing can be had; but it is competent for them, by consent, to submit to a hearing before the district judge who tried the cause in the district court, or before a district judge assigned to hold the court 'in the place or in aid of such judge." Harmon v. United States, 43 Fed. Rep. 817, 819.

the absence of any express constitutional provision against it.'

Where the action to be taken can only be performed by a court, it can not be done out of the district or county in which the action or proceeding is pending, whether by the resident judge or the judge of another district.2

It has been held, however, that a judge may sign his findings and order for judgment outside of the territorial jurisdiction of the court, on the ground that it is the filing of the same in the proper place that constitutes the decision and determination of the case.3 And also that a judge who has been called to another district to try a cause may, with the consent of parties, hear and decide a motion for a new trial out of the district.*

So, a judge who is authorized to vacate injunctions in vacation may make an order therefor in a county of his circuit other than the one in which the injunction is pending. And usually, mere chamber orders that may be made by the judge are not void because made in another county or district. And in some of the states, express authority to make such orders as may be made out of court without notice anywhere in the state is given by statute."

Where there is but one court in a county, presided over by a single judge, two judges can not act in matters pending in such court at the same time. Therefore, a judge from another district can not make a valid order affecting a matter pending therein while court is being held by the resident judge. But where the district is composed of more than one county, a special term may be held in one county by a non-resident judge while the regular

340.

People v. McCauley, 1 Cal. 379; Holden v. Haserodt, 51 N. W. Rep.

2 Bennett v. Southard, 35 Cal. 688.

3 Comstock Q. M. Co. v. Superior Court, 57 Cal. 625.

5

Cheesman v. Hart, 42 Fed. Rep. 98, 105.

Hayzlett v. McMillen, 11 W. Va. 464; Horn v. Perry, 11 W. Va. 694. State v. Black, 34 S. Car. 194; 13 S. E. Rep. 361, 364.

'People v. O'Neil, 47 Cal. 109.

term is being held in another county by the resident judge.1

Where a cause is tried by the judge of another district, it will be presumed, in the absence of any showing in the record to the contrary, that such judge was properly called to preside, and that sufficient reason therefor existed.2

In calling a judge from another district to preside, the law authorizing it must be complied with. But where such a proceeding is authorized by law and such judge is actually called, the question whether he was properly called can not be raised collaterally.3

4

It has been held that, under a constitutional provision authorizing a judge to "hold court" in another district, such judge has no power or authority to perform the general duties of the office of judge in the district to which he is called, and that therefore he can not make valid orders at chambers. So it is held that authority given to call a judge to hold a term of court does not authorize such judge to be called to hold a part of a term or to try a particular case. But where the constitution authorizes a judge to "hold court" in another district, and does not forbid his performing any other duty, an act of the legislature extending his authority to other acts, either in such other district or in his own district to take effect in the other, is not unconstitutional. And in most of the states, the judge who is called in takes the place of the resident judge, and assumes and performs all of the duties pertaining to the office, unless his appointment and authority to act is limited to some specific duties. The authority of

1 Munzesheimer v. Fairbanks, 82 Tex. 351; 18 S. W. Rep. 697.

2 People v. Mellon, 40 Cal. 648, 655; Empire Land, etc., Co. v. Engley, 14 Colo. 289; 23 Pac. Rep. 452; Daniels v. Towers, 79 Ga. 785; 7 S. E. Rep. 120.

3 Post, secs. 60, 61; People v. Mellon, 40 Cal. 648, 655.

Wallace v. Helena Electric Ry. Co., 10 Mont. 24; 24 Pac. Rep. 626;

25 Pac. Rep. 278.

5 Gale v. Michie, 47 Mo. 326.

Holden v. Haserodt, 51 N. W. Rep. 340. See also Hughes v. Commonwealth, 89 Ky. 227; 12 S. W. Rep. 269.

the resident judge is, for the time being, wholly suspended, and no action can be taken by him.'

As has been said, however, this question must necessarily turn upon the provisions of the constitutions or statutes, as the case may be, of the different states. And the cases cited turn mainly upon the language used in the law of each state authorizing the exercise of jurisdiction by a judge out of his district.

A bill of exceptions must be settled and signed by the judge who tried the cause, although such judge is a nonresident and has returned to his own district. And the resident judge may settle and sign a bill of exceptions out of the circuit or district for which such judge was elected and in which the cause was tried.3

A judge can exercise no judicial functions out of the state. His authority is defined by the constitution and laws of the state, which can have no extra-territorial operation.1

58. AUTHORITY AT CHAMBERS. A difference is almost universally recognized between such duties as must be performed by a court and those which may be performed by a judge. Generally, all acts that are required to be done by a court must be done in term time and when the judge is, or, if the court is composed of more than one judge, a majority of the judges are, in attendance, at the time and in the place provided by law and duly and legally organized as a court. But exceptions to this rule.

1 Clark v. Rugg, 20 Fla. 861; Bear v. Cohen, 65 N. Car. 511; Hughes v. Commonwealth, 89 Ky. 227; 12 S. W. Rep. 269; Morriss v. Virginia Ins. Co., 85 Va. 588; 8 S. E. Rep. 383.

2

2 Empire Land, etc., Co. v. Engley, 14 Colo. 289; 23 Pac. Rep. 452; King Co. v. Hill, 1 Wash. St. 63; 23 Pac. Rep. 926.

3 Oliver . Town, 24 Wis. 512.

4

Payless . Price, 31 N. E. Rep. 88.

5 Ante, secs. 1, 19; State v. County Com'rs, 10 Pac. Rep. 901, 909; Washington & I. R. Co. v. Coeur D'Alene Ry. & Nav. Co., 28 Pac. Rep. 394; Laroo v. Casaneuava, 30 Cal. 561, 564; Norwood v. Kenfield, 34 Cal. 329; Bowman v. Venice, etc., Ry. Co., 102 Ill. 459, 467; Newman v. Hammond, 46 Ind. 119; Conkling v. Ridgely, 112 Ill. 36; 54 Am. Rep. 204; Ling v. King, 91 Ill. 571.

have apparently been made, by statutes, in some states. Thus a judge is sometimes authorized to decide a case and enter judgment therein at chambers and in vacation.'

Such statutes, however, are exceptional and rare. They have been upheld where there is no constitutional provision withholding the power. But, by the provisions of most of the state constitutions at the present day, such jurisdiction can only be exercised by courts, and not by judges.

The dividing line between such orders and other acts as may be made and performed by a judge at chambers and those which must be made or done by a court regularly sitting as such, can not be clearly and definitely defined or traced.3

So the acts that may be done at chambers are usually provided for specially by statute. And, under some of the decisions, they must be, as it is held that a judge at chambers has only such power and authority to transact judicial business as are expressly conferred upon him by statute.1

Jurisdiction at chambers is incidental to the jurisdiction of the court itself, and can only be exercised by the judge in a matter over which the court has jurisdiction. And,

1 State v. Meyers, 44 Ia. 580; McLane v. Granger, 74 Ia. 152; 37 N. W. Rep. 123; Brewster v. Hartley, 37 Cal. 15; 99 Am. Dec. 237.

2 Brewster v. Hartley, 37 Cal. 15, 23; 99 Am. Dec. 237.

Walters v. Anglo-American Mortgage and Trust Co., 50 Fed. Rep. 316, 317; ante, sec. 19.

Laroo v. Casaneuava, 30 Cal. 561, 564; Norwood v. Kenfield, 34 Cal. 329; Ellis r. Karl, 7 Neb. 381; Ferger v. Wesler, 35 Ind. 53.

5 Pittsburgh, Ft. W. & C. Ry. Co. v. Hurd, 17 Ohio St. 144; Walters v. Anglo-American Mortgage and Trust Co., 50 Fed. Rep. 316.

It is claimed that the 18th section of the 4th article of the constitution authorizes the legislature to confer upon a single judge of this court the jurisdiction, the exercise of which is now invoked. That section reads thus: "The several judges of the supreme court, of the common pleas, and of such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by law.'

"This section divides the powers which may be conferred by law on the several judges into two classes; according as its subject-matter makes it