JAMES, Appt., v.

GEORGE H. APPEL.

(See S. C. Reporter’s ed. 129-138.)

New trial — discharge of motion by operation of law — validity of territorial statutes providing for such discharge.

to be overruled at the end of the term, al¬ though continued to another term by an or¬ der in chambers made by the judge who tried the cause, because of his inability to at¬ tend, by virtue of Ariz. Rev. Stat. 1887, 1i S37, requiring motions for new trials to be “determined at the term of the court at which the motion shall be made," — especially when considered in connection with K 842, as amended by Acts 1891, No. 49, providing for a review by the territorial supreme court of a denial of a motion for a new trial, and enacting that “in case there shall be no ruling on said motion for a new trial during the term at which it was filed, then said motion shall be denied.”

functions was not made by the enactment of Ariz. Rev. Stat. 1887, 11 837, which dis¬ charges a motion for a new trial by opera¬ tion of law if not acted upon at .the same term.

jurisdiction to the Arizona courts, made by U. S. Rev. Stat. §§ 1868, 1908, did not prevent the enactment of Ariz. Rev. Stat. 1887, If 837, which discharges a motion for a new trial by operation of law if not acted upon at the same term, — especially in view of the provision of U. S. Rev. Stat. § 1866, that the jurisdiction given by § 1908 “shall be limited by law.”

[No. 108.]

Argued and submitted December 17, I9u3.

Decided January If, 1901/.

APPEAL from the Supreme Court of the Territory of Arizona, which dismissed, because taken too late, an appeal from a judgment of the District Court of the First Judicial District in and for the County of Pima in that Territory, in favor of plain¬ tiff. Affirmed.

The facts are stated in the opinion.

Mr. J. F. Bowie argued the cause, and, with Messrs. Thomas B. Bishop and Bishop, Wheeler, & Hoefler, filed a brief for appel¬ lant:

To determine the proper construction of a statute, the law as it stood at the time of the enactment of the statute is to be regard-

192 U. S.

ed, but not amendments made subsequent to the adoption of the statute under consider¬ ation.

United States v. Union P. R. Co. 91 U. S. 72, 23 L. ed. 224.

Statutes such as the one under considera¬ tion are purely directory.

Sutherland, Stat. Constr. § 448; Black, Interpretation of Laws, § 126; Endlich, In¬ terpretation of Statutes, §§ 436, 437; 23 Am. & Eng. Enc. Law, p. 458; Rawson v. Parsons, 6 Mich. 401; People v. Doe, 1 Mich. 451; Comer v. Chaff e, 5 Colo. 383; Aspen Min. & Smelting Co. v. Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup. Ct. Rep. 4; Broad v. Murray, 44 Cal. 228; Pearce v. S trickier, 9 N. M. 46, 49 Pac. 727; People v. Cook, 14 Barb. 259; Gilleland v. Schuyler, 9 Kan. 569; Shaw v. Orr, 30 Iowa, 355; Bell v. Taylor, 37 La. Ann. 56; Neal v. Burrows, 34 Ark. 491; McCarver v. Jenkins, 2 Heisk. 629; Boykin v. State, 50 Miss. 375; McBee v. Hoke, 2 Speers L. 138; State v. Carney,

20 Iowa, 82; Huecke v. Milwaukee City R. Co. 09 Wis. 401, 34 N. W. 243; State v. Pitts, 58 Mo. 556; State v. Smith, 67 Me. 328; Ex parte Holding, 56 Ala. 458; Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; Gaston v. Stott, 5 Or. 48; 14 Enc. PI. & Pr. p. 902.

The refusal or neglect of a court to act cannot be reviewed on appeal.

Greehn v. 8 humway, 73 Cal. 263, 14 Pac. 863; Astor v. Chambers, 1 Mo. 191.

Only judicial action can be reviewed by writ of error or appeal.

Gordon v. United States, 117 U. S. 697; Sanborn v. United States, 27 Ct. Cl. 485; Hicks v. Murphy, Walk. (Miss.) GO; Phelps County v. Bishop, 46 Mo. 68 ; Ex parte Chadwell, 3 Baxt. 98; Re Weymouth, 2 Cush. 335; Bower v. Cook, 39 Ga. 27.

The maxim. Actus curice neminem grava- bit, applies.

Evans v. Rees, 12 Ad. & El. 167 ; Free¬ man v. Tranah, 12 C. B. 406; Elliott, App. Proc. § 117; Jackson v. Carrington, 4 Exch. 41; Boody v. Watson, 64 N. H. 169, 9 Atl.

The rights of a party should not be af¬ fected by a delay of the court.

Bell v. Bell, 181 U. S. 175, 45 L. ed. 804,

21 Sup. Ct. Rep. 551.

The order of the district court of the ter¬ ritory denying the motion for a new trial must be considered as a nunc pro tunc order.

Gray v. Brignardello, 1 Wall. 627, 17 L. ed. 693 ; Fishmongers’ Co. v. Robertson, 3 C. B. 970.

A court created by act of Congress cannot be shorn of its inherent powers by an act of the territory in which it is constituted. The power to grant a continuance is an

377

Supreme Court of the United States.

Oot. Term,

inherent power of the district court of Ari¬ zona.

4 Enc. PI. & Pr. p. 825; Caswell v. Ward, 2 Dougl. (Mich.) 374; Burriss v. Wise, 2 Ark. 33; Cauglilin v. Blake, 55 Iowa, 634, 8 N. W. 475; Burt v. Williams, 24 Ark. 91.

Where, by the Constitution of the state, the legislative power is intrusted to one branch of the government and the judicial power is confided to another, any act by the legislative power, judicial in its nature, is void,

Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377 ; People ex rel. Butler v. Saginaw County, 26 Mich. 22.

The creation of a department for the exer¬ cise of the judicial power constitutes of it¬ self a delegation to that department of all the judicial power of the sovereignty except as otherwise limited by the Constitution itself.

Greenough v. Greenough, 11 Pa. 489, 51 Am. Dec. 567 ; A lexander v. Bennett, 60 N. Y. 204; Van Slyke v. Trempealeau County Mut. F. Ins. Co. 39 Wis. 390, 20 Am. Rep. 50; Cooley, Const. Law, p. 35.

A grant of general powers to one depart¬ ment of government impliedly excludes all other departments of government from the exercise of the powers granted to the first.

Cooley, Const. Lim. 6tli ed. 104; Montes¬ quieu, Esprit des Lois, p. 11, c. 6; Story, Const. 518, 525.

A judgment is in its nature an emanation from a judicial tribunal, and the rendition of a judgment is a judicial function.

P.laek, Law Diet.; 3 Bl. Com. 395; Bou- vier, Law Diet.

The judicial power is exercised in the de¬ cision of cases; the legislative in making general regulations by the enactment of laws. The latter acts from considerations of public policy; the former by the plead¬ ings and evidence in a case.

Pennsylvania v. Wheeling d B. Bridge Go. 18 How. 440, 15 L. ed. 441.

Passing judgment upon proceedings pend¬ ing in courts is beyond the powers of a leg¬ islative assembly.

State v. Fleming, 7 Humph. 152, 40 Am. Dec. 73; Ex parte Shrader, 33 Cal. 279; Sinking Fund Cases, 99 U. S. 761, 25 L. ed. 516; Jones v. Perry, 10 Yerg. 59, 30 Am. Dec. 430; Merrill v. Sherburne, 1 N. H. 199, 8 Am. Dec. 52; Taylor v. Place, 4 R. 1. 324; Be Chastellux v. Fairchild, 15 Pa. 18, 53 Am. Dec. 570; Young v. State Bank, 4 lnd. 301, 58 Am. Dec. 630; Officer v. Young, 5 Yerg. 320, 26 Am. Dec. 208; Holce v. Hen¬ derson, 15 N. C. (4 Dev. L. ) 1, 25 Am. Dec. 677; Sanders v. Cabaniss, 43 Ala. 173; Cooley, Const. Lim. *91 ; Marpole v. Gather, 78 Va. 239.

The phrase “shall be as limited by law”

378

refers, not to such law as jnight be enacted by the legislature, though that might some¬ times be included, but to the organic act it¬ self, and to the general history of our juris¬ prudence.

Ferris v. Higley, 20 Wall. 375, 22 L. ed.

'The right of a party to move for a new trial, and the power of the court to deter¬ mine such motion, were well established at common law prior to the American Revolu¬ tion.

3 BI. Com. 387, 38S; William v. Lewis, 1 Wils. 48; Wood v. Gunston, Style, 460; Bright v. Eynon, 1 Burr. 391.

Messrs. C. W. Holcomb, W. C. Keegin, and J. H. McGowan submitted tlie cause for appellee. Messrs. Frank H. Hereford and Seth E. Hazzard were with them on the brief:

A motion for a new trial may be contin¬ ued to succeeding terms like vother motions or proceedings, unless the statute requires said motion to be heard during the trial term.

Valient ine v. Holland, 40 Ark. 338: Walk¬ er v. Jefferson, 5 Ark. 23; Doddridge v. Gaines, 1 MacArth. 335; England v. Buck- worth, 75 N. C. 309; Kane v. Burras, 2 Smedes & M. 313.

The. statute is mandatory, and not di¬ rectory.

McKean v. Zillcr. 9 Tex. 59; Bullock v. Ballew, 9 Tex. 498; Laird v. State, 15 Tex. 317; Bass v. Hays, 38 Tex. 1.29; Wilcox v. State, 31 Tex. 587 ; Carter v. Van Zandt County, 75 Tex. 280, 12 S. IV. 985.

In adopting and enacting a foreign stat¬ ute decisions expounding it are adopted with it.

Tucker v. Oxley, 5 C'raneh, 42, 3 L. ed. 31 ; Pcnnock v. Dialogue, 2 Pet. 18, 7 L. ed. 333; Cathcart v. Robinson, 5 Pet. 280, 8 L. ed. 120; McDonald v. Hovey, 110 U. S. 628, 28 L. ed. 272, 4 Sup. Ct. Rep. 142; Brown v. Walker, 101 U. S. 600, 40 L. ed. 822, 5 Inters. Com. Rep. 309, 16 Sup. Ct. Rep. 044; Henrietta Min. d Mill. Co. v. Gardner, 173 U. S. 130, 43 L. ed. 640, 19 Sup. Ct. Rep.

The constitutionality of a statute provid¬ ing that a judgment shall be entered in cer¬ tain cases has been expressly decided in Wy¬ oming.

Barkwell v. Chatterton, 4 Wyo. 307, 33 Pac. 940.

After a judgment has been rendered upon a full hearing, it could hardly be considered an encroachment upon the judicial power if the trial court were denied altogether the right to change its decision.

Pittsburgh, C. C. d St. L. R. Co. v. Back¬ us, 154 U. S. 421, 38 L. ed. 1031, 14 Sup. Ct. Rep. 1114.

192 U. S.

James v. Appkl

134-lStt

The simple disapproval by Congress at any time would have annulled the statute. It is no unreasonable inference, therefore, that it was approved by that body.

Clinton v. Englebrecht , 13 Wall. 434, 20 L. ed. 659; Camon v. United States, 171 U. S. 277, 43 L. ed. 163, 18 Sup. Ct. Rep. 855.

Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a judgment of the supreme court of the territory of Arizona, dismissing an appeal because taken too late. The appellee recovered a sum from the ap¬ pellant in the court of first instance, and, after judgment was entered, the appellant moved for a new trial. The judge who tried the case, being unable to attend, made an order in chambers, continuing the motion to another term. At a later term, after several similar continuances, the motion was overruled, and the appellant then ap¬ pealed to the supreme court of the territory. These events took place before the passage of the Arizona Revised Statutes of 1901. (See par. 1479.) It is assumed that the appeal was too late if the judgment became [I35]final at *the term when it was rendered (Re¬ vised Statutes of Arizona, 1887, par. 849), and we may assume further that the ground of dismissal was the paragraph of the Re¬ vised Statutes requiring that motions for new trials “shall be determined at the term of the court at which the motion shall be made.” Rev. Stat. 1887, par. 837, and the further pi-ovision of par. 842. By the lat¬ ter, as amended in 1891, “when, upon mo¬ tion. a new trial is denied,” a review by the supreme court is provided for, and it then is enacted that “in case there shall be no ruling on said motion for a new trial during the term at which it was filed, then said motion shall be denied, and the questions that may have been raised thereby shall be subject to review by the supreme court as if said motion had been overruled and ex¬ ceptions thereto reserved and entered on the minutes of the court.” Acts of 1891, No. 49, p. 69.

The Arizona par. 837 is copied from a similar section in the Texas Code, act of May 13, 1846, § 112, Hart’s Dig. Texas Code, art. 766, 1 Sayles’ Texas Civ. Stat. art. 1372. Long before its adoption in Arizona the lat¬ ter section had been construed in Texas as mandatory, and as discharging a motion by operation of law if not acted upon at the same term. It was held to put it out of the power of the court to postpone the mo¬ tion for a new trial to the next term, and then to act upon it. If the requirement could be avoided by a continuance, it would be made almost nugatory. McKean v. fil¬ ler, 9 Tex. 58; Bullock v. Ballew, 9 Tex. 192 U. S.

498; Bass v. Hays, 38 Tex. 128. When a statute is taken in this way from another, even a foreign, state, it generally is pre¬ sumed to be adopted with the construction which it has received. Tucker v. Oxley, 5 Crunch, 34, 42, 3 L. ed. 29, 31 ; Henrietta Min. & Mill. Co. v. Gardner, 173 U. S. 123,

130. 43 L. ed. 637, 640, 19 Sup. Ct. Rep.

327 ; Com. v. Hartnett, 3 Gray, 450. See Contain v. Doull, 133 U. S. 216, 33 L. ed.

596, 10 Sup. Ct. Rep. 253. On this ground as well as that of the meaning of the words, the act had been construed as in Texas by the supreme court of Arizona. Ruff v.

Hand, 24 Pac. 257. In view of the history of the section we shall spend no more time upon the question. Even *were it more

doubtful, we are of opinion that the amend¬ ment of 1891 to par. 842 makes the mean¬ ing plain. The words “then [necessarily after the end of the term] said motion shall be denied,” show that the motion is disposed of at the end of the term. Furthermore, they do not mean that an order must be made out of term because of the failure to make an order within it, but mean that the motion shall be barred by the lapse of time, adopting the decision of the year before in Ruff v. Hand, and save an exception as if the motion had been denied by the court.

The amendment assumes or enacts that the motion is to be deemed overruled at the end of the term, and has for its object to give the party an exception in case he appeals from the judgment, so that the propriety of granting the motion may be reviewed along with the other matters brought before the supreme court. See Spicer v. Simms (Ariz. ) 57 Pac. 610.

It is urged that at least the statute can¬ not be meant to operate when the postpone¬ ment is for the convenience of the court, and the case is likened to those where a judgment or order is entered nunc pro tunc in order to prevent a loss of rights through a delay caused by the court itself. But there is no need of an exception in such a case. The party’s rights are saved, but transferred for consideration to a higher court, and were it otherwise we should hesi¬ tate to read the exception into such abso¬ lute words.

It is said that by the foregoing construc¬ tion the legislature attempts an unconstitu¬ tional assumption of judicial functions. But this is a mistake, both in form and sub¬ stance. In form, because the legislature does not direct a judgment, but merely re¬ moves an obstacle to a judgment already en¬ tered. (We need not consider whether a different construction would be adopted if the statute dealt with the time for entering judgments.) In substance, because we no more can doubt the power of the legislature

379

136 138

to enact a statute of limitations for mo¬ tions for a new trial than we can doubt its power to enact such a statute for the bring¬ ing of an action. It may be questioned

whether *there would be any constitutional objection to a law making the original judg¬ ment final, and doing away with new trials altogether, “llehearings, new trials, are not essential to due process of law, either in judicial or administrative proceedings.” Pittsburgh, C. G. & St. L. R. Go. v. Backus, 164 U. S. 421, 426, 38 L. ed. 1031, 1030, 14 Sup. Ct. Rep. 1114. See Montana Co. v. St. Louis Min. ct- Mill. Go. 152 U. S. 160, 171, 38 L. ed. 398, 400, 14 Sup. Ct. Rep. 506. The statute did not deal with the past, or pur¬ port to grant or refuse a new trial in a case or cases then pending, but performed the proper legislative function of laying down a rule for the future in a matter as to which it had authority to lay down rules. Whether the attempt to grant a review of the mo¬ tion in case of an appeal or writ of error was valid is not before us. But certainly it does not seem an extraordinary stretch of legislative power to say that if the right to have a motion considered is lost in the lower court by lapse of time, the motion may be considered on appeal. There is no judgment by the legislature, but simply a qualification of the time limit if the case goes up.

Finally, it is argued that the sections, construed as we construe them, are incon¬ sistent with the grant of common-law juris¬ diction to the courts by Congress. Rev. Stat. §§ 1868, 1908. It is said that the right to grant new trials was a well-recog¬ nized incident of common-law jurisdiction, and that it cannot be taken away or cut down by the territorial legislature. In view of the provision in § 1866, that the ju¬ risdiction given by § 1908 “shall be limited by law,” and, indeed, apart from it, we should hesitate to say that the territorial legislature was prevented -by the grant of common-law jurisdiction, in general words, from doing away with new trials altogether. A rule of practice like this does not touch jurisdiction in any proper sense. Ferris v. Higley, 20 Wall. 375, 22 L. ed. 383, cited by the appellant, has no application. Apart from other differences, that was a case of an attempt to confer original jurisdiction in civil and criminal cases, both in chancery and common law, upon the probate courts. We certainly see nothing to prohibit the lo¬ cal legislature from making this not unusual

or unreasonable rule. *See Hornbuckle v. Coombs, 18 Wall. 648, 21 L. ed. 966; Bent v. Thompson, 138 IJ. S. 114, 34 L. ed. 902, 11 Sup. Ct. Rep. 238; Greeley v. Winsor. 1 S. D. 618, 631, 48 N. W. 214.

Judgment affirmed.

380

Oct. Term,