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8. — as to facts.]—A consent or stipulation as to facts or evidence is only one mode of proof, and implies that there is to be a judicial determination of any other facts involved, and a judicial decision as to the law, or a judicial exercise of discretion; so that the consenting party is left free to contest both the propriety of the decision and the form and regularity of the order, with the sole exception of the fact admitted or the reception of the evidence consented to.

9. Consent for party non sui juris.]—An order should not be made on the consent of the guardian ad litem of an infant or the committee of a lunatic, unless it be one purely incidental to pro cedure, and obviously not prejudicial, such as an adjournment; or one which might be made ex parte or without consent.

An order affecting the merits, or which might be prejudicial, should not be made on facts admitted by such a guardian ad litem or committee, but some evidence at least of the facts should be adduced to bind the rights of the person non sui juris, and the fact that evidence was adduced should appear by the order.

10. Consent to hearing by judge having no jurisdiction.]—A consent that a motion be heard by a judge when he has no jurisdiction is only submission to arbitration, and his order only an award; although if the order is put in a form to show jurisdiction, a party consenting may be held bound by it as a regular and valid order.

11. Orders of court or of judge.]— The principles upon which to determine what orders must be made by the court, what must be made by the judge, and what may be made by either, have already been explained;96 and their application will be further considered in connection with particular orders, such as orders for service of summons by publication, orders of arrest, and the like.

It will be useful here to notice the means of determining to which of these classes an order of doubtful character belongs. The appropriate distinguishing marks of a court order are that besides being entitled in the cause, its caption indicates that it is made at a specified term of court, held at a time and place and before a judge so as to constitute a session of the court, and

96 Article on MOTIONS, pp. 88–95, of this volume.

the original (if not a mere entry in the minutes or journal, made by the clerk by authority of the judge) is authenticated or

passed” by the judge writing at the foot of the paper constituting the original order the word “Enter," attested by his initials, personal and official; and upon this direction the clerk makes the order a part of the records of the court in the cause. 97 On the other hand, a judge's order, though entitled with the name of the court, as well as the names of the parties, or the first party on each side, has nothing to indicate that it is made at a session of the court, and is authenticated by the signature and addition of the official title of the judge, with a date to show the time when it was made. It thus appears on its face to be simply a direction given by that officer.

12. Orders at trial term Special term adjourned to chambers.] — Care should be taken to designate the court correctly, and, in a court order, the term.98 But an error in respect to term is not necessarily fatal. Thus an order made at a trial term is not deemed void because the caption uses the statutory phrase Special Term.09

An order which can only be made at Special Term is void if made at Trial Term when there is no Special Term.?

II. ENTITLING, 13. Caption.]— In the forms of orders given in the succeeding chapters of this work the caption "At a term,” or “At a special

97 Jlatter of Munson, 95 App. Div. 23, 88 N. Y. Supp. 509. But this precise form is not imperative. Thus in Merrill v. Montgomery, 25 Mich. 73, an order for substituted service (in ejectment), on a showing that ordinary service could not be made, appeared in the form of a motion in the special motion book, with the memorandum,

“ Granted. B. F. Graves, Cir. Judge." Geld, that this must be deemed the act of the court.

The court say: “Although an entry on the journal would be more regular, yet the practice of deciding motions in this way is quite common at the circuit, and is never, 80 far as we know, resorted to except when the court is sitting."

88 Thus in People ex rel. Hewlett v. Brennan, 61 Barb. 540, an order entitled as “at a Special Term of the Supreme Court and of the Oyer and Ter. miner,” signed by the judge without any direction to enter it, and directing the discharge of a prisoner held on civil process, but made without notice to the creditors in such process, was held unauthorized; because, although entitled as above, yet there was no such court as a Special Term of Supreme Court " and Oyer and Terminer,” and hence it must be considered as an order of the court of Oyer and Terminer, and that court had no jurisdiction to make such an order.

Smith o. Coe, 30 N. Y. Super. Ct. (7 Robt.) 477. 1 Bedell v. Powell, 3 Code Rep. 61 (setting aside such an order).

term” (etc), over any one, indicates that an order for the purpose for which that form is given (except in the first judicial district of New York, where an order made by a justice of the Supreme Court operates as a court order) should be a court order, and requires a caption, unless there be prefixed to the caption an indication in the alternative that the order may be entitled (as a judge's order) with mere name of court and parties.

14. — of order of court.]—An order of court, with a proper caption, is presumed to have been made accordingly, if it shows a time, place, and judge proper to constitute the court.

If the caption indicates time, place, and judge that may have constituted a proper court, the presumption is in favor of the regularity of the proceedings.

Subject to qualifications below stated as to antedating, and as to motions heard under stipulation, the caption of an order should express the true time when, and places where, the order was granted, and the name of the judge. 4

A regular caption is conclusive as to the facts indicated in it, unless contradicted by positive and cogent evidence.

2 And even if it designate the term as an adjourned term, if there be evidence that the necessary justices were present and acting, it may be presumed that the term was regularly called and held. Dallas Co. l'. McKenzie, 110 U. S. 686. Waite, Ch. J., says: “ The records of the County Court which were put in evidence show aflirmatively that all the justices were present and acting at the adjourned and special terms, when the orders were made directing the subscription to the stock and providing as to the terms of the contract. The last order was made at a regular term. Under these circumstances, it is certainly to be presumed, in the absence of anything to the contrary, that the terms were regularly called and held. It was, therefore, not error to admit the records in evidence without proof of the order for the adjourned term, or the call for the Special Term."

A clerical error in stating the wrong county in the caption results in an irregularity merely. Wright v. Bowne, 79 Hun, 385, 29 N. Y. Supp. 1151.

3 Fisher v. Hepburn, 48 N. Y. 41.

4 Matter of Myers, 3 How. Pr. 234; Whitney v. Belden, 4 Paige, 140. Where necessary, it may be held to relate back and to take effect from the time the motion was made. May v. Cooper, 24 Hun, 7; McKee v. Flaherty, 1 Monthly L. Bul. 14.

5 People ex rel. Burhans v. Supervisors of Ulster, 19 Wkly. Dig. 208. (So held against motion to quash certiorari on the ground that the allowance was not at a term as indicated in the caption.)

Henry v. Randall, 15 Wkly. Dig. 106 (holding that where the order itself shows that it was made at the Special Term of the court held by the judge before whom the previous proceedings took place, the legal presumption is that this statement is correct, and that the order was made as it appears to have been, by the court during the term, and not by the judge out of court).

15. order of judge not available as court order. ] – In a case in which the law requires an order to be made by the court, ‘an order appearing on its face to be merely that of a judge cannot avail;* nor will extrinsic evidence be received to show that it was really made by the court, unless perhaps where the party against whom it is urged had actual notice of the decision and was not prejudiced.

A judge's order in a case where an order of court is required as, for instance, to stay proceedings for more than twenty days is not rendered valid by the fact that when he made it he was holding court and might have made a court order.

But a party succeeding on a court motion cannot, by taking a judge's order instead of a court order in a case where the statute requires a court order, prevent the other party from appealing on the merits if the order recites enough to show it was made on a contested motion.

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16. form of judge's order; apparent court order may avail.] - If the order is one made by a judge, it should be signed by him, and the date is appended instead of prefixing a caption.

The mistake of entitling a judge's order as if made by the court, will not deprive it of effect as a judge's order if it be signed by him as a judge, even though he sign it when on the bench holding court. The reason is that the power of a judge may be exercised by him as such at any time, and it would be an idle formality to adjourn court and leave the bench in order to sign an order.

& Matter of Wadley, 29 Hun, 12. Except of course in the first district in New York, where a justice of the Supreme Court may make orders that elsewhere can only be made by the court. Main t'. Pope, 16 How. Pr. 271. In Matter of Munson, 95 App. Div. 23, 88 N. Y. Supp. 509, an order, which had no caption, but which contained recitals as having been made at a Special Term, was held a court order. See, also, Borthwick v. Howe, 27 Hun, 505.

7 Wood r. Kimball, 9 Abb. Pr. 419, 18 How. Pr. 163.

88. P., paragraph 16, note 14. This seems to be the point really decided in Ives v. Phelps, 16 Minn. 451. But if the irregularity of such an order were the objection, the better remedy is by motion to correct, rather than by appeal, and this ordinarily would be so before appeal on the merits. See also p. 74 of this volume.

9 Matter of Knickerbocker Bank, 19 Barb. 602; Matter of Munson, 95 App. Div. 23, 88 N. Y. Supp. 511; Dresser ?. Van Pelt, 15 How. Pr. 19: Caldwell's Case, 13 Abb. Pr. 405; sub nom. People v. Kelly, 35 Barb. 444. In Albrecht r. Canfield, 92 Hun. 240, 36 N. Y. Supp. 941, the court, in making a similar ruling, held that neither the fact that the order was entered, nor that it was alleged in the complaint to be a court order prevented the court's holding it a judge's order.

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If an order is signed by a judge with his full name, with no directions to enter it, and it is not entered, it is a judge's order and not a special term order, although it has a caption.

Such mistakes in the form of a judge's order are amendable, and the amendment may be made by a court order.2

So the mistake of entitling an ex parte order - such as an extension of time to answer - in the wrong court may be disregarded where the judge who made it had power to make it, and the party was not misled.13

The moving party cannot, by taking a court order in a case where a judge's order should be taken, prevent the adverse party from applying to the court upon notice, at a term held by any other judge, to vacate it.14

An order made by the court on a motion to the court, in a case where the only authority for the order is a statute authorizing a judge to make the order, is not sustainable.15

17. court motion heard at chambers by stipulation.] Where a motion which the law requires to be heard in court is heard at chambers under a stipulation of consent, it is safer to entitle the order as at special term, naming the place and date where the regular term was held, unless the term of court itself was adjourned; or unless the stipulation expressly or in effect provides that the judge's order shall have the same effect as a court order, and is referred to in and filed with the order. Even tien such an order has been held not appealable because a mere award. 16

10 Atl. & Pac. Tel. (0. 1. B. & 0. R. R. Co., 46 Super. Ct. 377. (So held, on motion to set aside injunction, an objection that a certified copy of the injunction order was not served on defendant.)

And if the terms of the order indicate that the application was to a judge, rather than the court, the fact that his signature was only by initials, with the direction“ enter," as if it were a court order, does not preclude extrinsie evidence to show that it was in fact made by him out of court.

Coffin . Lesster, 36 Hun, 347; Phinney 4. Broschell, 19 id. 116, aff'd in 80 N. Y. 544, approving positively without passing on the point.

So, where a judge by mistake inserted before his signature the words “by
the court,” held, no objertion, for he had full authority to sign it as judge.
Territory of Dakota er rel. Eisenmann r. Shearer, 2 Dak. 332, 8 N. W. Rep. 25.

11 Mojarrieta 1. Saenz, 80 N. Y. 553; Coffin v. Lesster (above).
12 Id.
13 Hazard P. Wilson, 3 Abb. N. C. 50.

14 Matter of Brake, N. Y. Daily Reg., Aug. 4, 1880; mem. S. c., 21 Hun, 619; 8. P., paragraph 15, note 8.

15 Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278; Matter of Howe, 66 App. Div. 7, 72 N. Y. Supp. 866.

16 Kelly 1. Thayer, 34 How. Pr. 163.

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