§ 433. Where orders may be made.

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." Thus, in the absence of statute, a judge out of court and off the bench has no power to approve an appeal bond, and direct it to be filed nunc pro tunc, as of a previous date within the time fixed by an order of court, which has expired.78 For the purpose of jurisdiction at chambers, where such jurisdiction is conferred, such chambers are wherever the judge happens to be in his circuit or district, when the exigencies of the case call for the transaction of chamber business.79

§ 434. Frame of orders.

Orders are molded and shaped to meet the exigencies of each particular case. 80 The caption should always state truly the place where the court was held when the order was made, and, where it is material to either party, the caption or date should be made to correspond with the true time of the entry of the order.81 But where the party who is entitled to draw up an order enters it as of the time the decision of the court

at the time he gave his consent. Roby v. Title Guarantee & Trust Co., 166 Ill. 336, 46 N. E. 1110.

76 Roby v. Title Guarantee & Trust Co., 166 Ill. 336, 46 N. E. 1110. See, also, as to consent orders, post, §§ 704, 711.

7 Blair v. Reading, 99 Ill. 600; Hunt v. Wallis, 6 Paige (N. Y.) 371. In some jurisdictions, power is conferred upon judges in vacation or in chambers.

78 Pardridge v. Morgenthau, 157 Ill. 395, 42 N. E. 74. A chancellor on a hearing at chambers in vacation can exercise no judicial function. Thus, where there is an agreement that the cause may be heard at chambers, in vacation, the chancellor can make no order in the cause that will bind the parties, as a judicial act or otherwise, without their assent, and which is not strictly in pursuance of their agreement, if at all. Blair v. Reading, 99 Ill. 600.

79 In re Neagle, 39 Fed. 833.

80 Worth v. Gray, 59 N. C. 4.

811 Barbour, Ch. Pr. 587; Whitney v. Belden, 4 Paige (N. Y.) 140.

(449)

was pronounced, he cannot afterwards object that it was not actually entered at that time.82 The order should be so entitled as to identify the order with the cause in which it is made;83 but it need not contain at full length the names of all the parties to the cause.84 The caption of an order is followed by the title of the suit in which it is entered. The complainant's name should be placed first.85 Care should be taken that no mistake occurs in the names of the parties, for where, in the title of an order to dismiss a bill for want of prosecution, the complainant was called by a wrong Christian name, the court refused to direct a replication filed after the order was drawn up and served to be taken off the files.86 The title of the cause is succeeded by a brief recital of the papers on which it is founded, and of the names of the solicitors for the respective parties who appear in support of or in opposition to the application.87 The order concludes with the ordering part, which contains the directions of the court upon the matter of the application.88 In drawing orders, brevity should be studied, so far as it may be consistent with a statement expressing the grounds upon which the order is made, and showing that its entry is regular.89 Generally, an order should be signed by the court.90 This is, however, a matter for local regulation, and frequently statutes requiring such signature are held to be directory merely.91 The orders of a court of record must appear of record, and a mere memorandum made by a judge off the bench is not such order.92 A mere oral decision is of no effect

82 Whitney v. Belden, 4 Paige (N. Y.) 140.

83 Telfer v. Hoskins, 32 Ill. 165.

84 Telfer v. Hoskins, 32 Ill. 167; Paddock v. Palmer, 32 Misc. Rep. 426, 66 N. Y. Supp. 743.

85 1 Barbour, Ch. Pr. 587.

86 1 Barbour, Ch. Pr. 587; Verlander v. Codd, 1 Sim. & S. 94.

871 Barbour, Ch. Pr. 587; Macy v. Nelson, 62 N. Y. 638.

88 1 Barbour, Ch. Pr. 587.

89 1 Barbour, Ch. Pr. 587.

90 Branch v. Walker, 92 N. C. 87.

91 Baker v. Baker, 51 Wis. 538, 8 N. W. 289; McCrea v. Haraszthy, 51 Cal. 146.

92 Pardridge v. Morgenthau, 157 Ill. 395, 42 N. E. 74.

without an order entered of record.93 Until an order is entered, it is inoperative as such.94 All orders should be entered in the office of the clerk of the court where the suit is pending.95

§ 435. Entry of order nunc pro tunc.

96

It is a common occurrence to apply to the court to enter an order nunc pro tunc, as of a date when it was actually made, or when existing conditions imposed on the court the duty of entering it to correct a mistake in failing to enter an order which was actually made, or should have been made." After the court's power has ceased, an order nunc pro tunc, as of a preceding term, when the court had jurisdiction, is invalid.97 Liberty has been given to redraw an order which was lost before it was entered, and to enter it nunc pro tunc, though to charge interest, it appearing by the minute book of the registrar to have been drawn up.98 It is said that an application to enter an order nunc pro tunc is a motion of course when the party entitled to the order comes speedily, but after a length of time there ought to be notice of the motion.99

§ 436. Notice and service of orders.

In Illinois it is held that, where a defendant has once been brought into court by a service of process, he is bound to take notice of all orders made in the cause; and so where a bill was dis

931 Barbour, Ch. Pr. 584; Whitney v. Belden, 4 Paige (N. Y.) 140; Fingal v. Blake, 2 Molloy, 50. See Judson v. Gage, 98 Fed. 540.

94 United States Life Ins. Co. v. Shattuck, 159 Ill. 610, 43 N. E. 389; Stafford v. Ambs, 8 Abb. N. C. (N. Y.) 237; Whitaker v. Desfosse, 7 Bosw. (N. Y.) 678. It is held that, though signed by the judge, it is of no efficacy until delivered to the clerk to be filed. United States v. Alexander, 46 Fed. 728.

951 Barbour, Ch. Pr. 585.

96 Skerrett's Estate, 80 Cal. 62, 22 Pac. 85; Marine Bank Co. v. Mal. lers, 58 Ill. App. 232; Moore v. Meek, 8 Kan. 153; Gray v. Brignardello,

1 Wall. (U. S.) 627; Lanyon v. Michigan Buggy Co., 94 Ill. App. 243.

97 Ludlow's Heirs v. Johnston, 3 Ohio, 553, 17 Am. Dec. 609.

98 Williamson v. Henshaw, 1 Dickens, 129.

991 Barbour, Ch. Pr. 585; Anonymous, 3 Atk. 521. See post, § 728, for entering decrees nunc pro tunc.

missed for want of prosecution, and two days afterwards, at the same term, the order of dismissal was set aside, it was held that no notice was required to be given to the defendant of the vacating of the order of dismissal, and reinstating the cause.100 The question as to the necessity of service frequently depends upon the form of the order. Thus, where a court directs a party to do an act within so many days after the service of the order, a copy must be served; but where the act is directed to be done within so many days after the date, or after the entry of the order, the court intends that the party shall take notice of the order without service or express notice thereof.101 After an order is drawn up, settled, and entered, it is then to be served, when ervice is necessary. Thus, it is a general rule that all orders which are to have the effect of requiring or limiting any act of the opposite party to be done within a specified time, or to bring him into contempt for disobedience, must be served, or actual notice thereof given.102 All orders which do not seek to bring the party into contempt may be served upon the solicitor for such party, if he has appeared by a solicitor. Where the object is to bring the party into contempt, the order must be personally served, which is done by delivering a copy of the order to such party, and showing him a certified copy thereof, at the time of service, unless the production of it is expressly waived.103 Personal service will be dispensed with when the party cannot be found.104 In such and some other cases, service upon a solicitor will be substituted for personal service.105 A party is in contempt for not obeying an order served upon his

100 Smith v. Brittenham, 98 Ill. 188. See, also, Roby v. Title Guar intee & Trust Co., 166 Ill. 336, 46 N. E. 1110.

101 1 Barbour, Ch. Pr. 590.

1021 Barbour, Ch. Pr. 590; Ladd v. Ingham, 3 How. Pr. (N. Y.) 90. 103 1 Barbour, Ch. Pr. 590; Stafford v. Brown, 4 Paige (N. Y.) 360; Wallis v. Glynn, 19 Ves. 380; Perrine v. Broadway Bank, 53 N. J. Eq. .21, 33 Atl. 404; In re Cary, 10 Fed. 622.

104 Jackson v. - 2 Ves. Jr. 417.

105 1 Barbour, Ch. Pr. 591. The court may dispense with service of an order, where justice requires. Sullivan v. Wallace, 73 Cal. 307, 14

Pac. 789.

solicitor, if knowledge of such service was brought home to the party, in the same manner as if it were served upon him personally.100 Generally, orders are to be served, when necessary, in the same manner as notices of motions. Upon the copy served is usually indorsed a notice, signed by the solicitor of the party obtaining the order, that it is "a copy of an order entered in this cause in the office of the register [or clerk] of this court." This is, however, not necessary.10

437. Orders to show cause.

107

An order or rule to show cause is an order requiring a party to appear and show cause why a certain thing should not be done or permitted.108 An order nisi is substantially an order to show cause. Such orders are granted, upon application to the court, without either service or notice. In certain cases, a party presenting a petition, affidavit, or master's report may have an order nisi that the prayer of his petition or motion be granted, unless cause to the contrary be shown within the time limited by the rules, or fixed by the court for that purpose. A copy of this order is to be served upon the adverse party, and, if he does not appear to show cause at the time appointed, the order nisi will be made absolute, on proving due service of a copy thereof.108 Thus, on filing a master's report, an order nisi may be entered to confirm the same, unless cause to the contrary be shown within a specified time.110 In computing the time upon motions or orders nisi, the whole of the day on which the order was served is to be included, and the day on which the motion is to be made is to be excluded; or, as it is often expressed, the day of service is excluded, and the day on which the act is te

106 People v. Brower, 4 Paige (N. Y.) 405; 1 Barbour, Ch. Pr. 591 See, for contempt in disobeying orders of the court, post, §§ 517 et seq. 534 et seq.

107 1 Barbour, Ch. Pr. 591.

108 Black, Law Dict. tit. "Order."

109 1 Barbour, Ch. Pr. 592.

110 1 Barbour, Ch. Pr. 592; Vandenburgh v. Van Rensselaer, 6 Paige (N. Y.) 147.