Green, PRESIDENT,
delivered the opinion of the Court:
In addition to the facts appearing by the record in this cause, there are others of which this Court will take judicial notice, which are necessary to the full understanding of this case.
At the institution of this suit, and when it was decided, Wood county constituted a portion of the ninth judicial circuit, of which Judge Loomis was the Judge, Ritchie county constituted a portion of the second judicial circuit, of which Judge Stewart was the Judge, and Thomas W. Harrison, who really decided this cause, was the Judge of the fourth judicial circuit. Judge Harrison, it appears by the record, held the January term of the circuit court of Ritchie county, instead of Judge Stewart, the Judge of that court.
It appears by the recitals in the decree of this cause, made at the April term 1872 (which the record shows was held by Judge Stewart, the Judge of that court), that the parties to this cause, at the January term of said court, in open court, consented that the papers of this cause might be taken and the cause decided in vacation, and that the decree rendered might be entered in the circuit court of Wood county, at its next term. No decree, however, was entered at the January term 1872 of the circuit court of Ritchie county, consenting that this cause might be decided in vacation, and such decree so entered. How Judge Stewart, who held the April term 1872 of the said circuit court, ascertained that the parties gave such consent and agreement as is recited in his decree, in no manner appears. Even this recital does not say that the parties had consented, in open court, at [680] the January term 1872, that a decree might then be en- ' tered and the cause submitted in vacation, or that they consented to the entry of any decree at the January term 1872; so that it is impossible to say from this record that any clerical misprision was made at the January term 1872, whereby the entry of such decree on the record book, was omitted.
It was decided in the case of Monroe et al. v. Bartlett et al., 6 W. Va. 441, in the language of Judge Haymond, who delivered the opinion of the Court: “A chancery cause can be heard and 'a final decree rendered therein only in open court, unless there be some consent order made in court in relation thereto ; and we do not now determine it to be competent to do so by consent, as-the question does not arise.” Here, no consent order in relation thereto was made at the January term 1872, nor was it, so far as the record shows, ever understood or agreed that any consent order in relation thereto should be entered at the January term 1872. It may be regarded as questionable whether such a consent order could authorize the regular judge of the circuit to enter a final decree otherwise than in open court, and it seems to me quite clear, that such consent order could not authorize any one to enter such final decree in vacation, except the regular judge of the circuit, even if he could be authorized.
Judge Harrison, when the circuit court of Ritchie county adjourned at the close of its January term, ceased at once to have any judicial functions in Ritchie county; and such consent order could no more authorize him to enter upon a final decree in the cause, than it could authorize any other person who had no judicial functions. Judge Harrison, after the adjournment of the January term 1872 of the Ritchie circuit court, had no ■ authority to decide this cause; had he done so, and put his decree of record on the order book of Ritchie county circuit court, such a decree would have been a nullity. He decided the case and sent the final decree to the clerk [681] of Ritchie county circuit court, but without directions to put it on the record book.
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Green, PRESIDENT,
delivered the opinion of the Court:
In addition to the facts appearing by the record in this cause, there are others of which this Court will take judicial notice, which are necessary to the full understanding of this case.
At the institution of this suit, and when it was decided, Wood county constituted a portion of the ninth judicial circuit, of which Judge Loomis was the Judge, Ritchie county constituted a portion of the second judicial circuit, of which Judge Stewart was the Judge, and Thomas W. Harrison, who really decided this cause, was the Judge of the fourth judicial circuit. Judge Harrison, it appears by the record, held the January term of the circuit court of Ritchie county, instead of Judge Stewart, the Judge of that court.
It appears by the recitals in the decree of this cause, made at the April term 1872 (which the record shows was held by Judge Stewart, the Judge of that court), that the parties to this cause, at the January term of said court, in open court, consented that the papers of this cause might be taken and the cause decided in vacation, and that the decree rendered might be entered in the circuit court of Wood county, at its next term. No decree, however, was entered at the January term 1872 of the circuit court of Ritchie county, consenting that this cause might be decided in vacation, and such decree so entered. How Judge Stewart, who held the April term 1872 of the said circuit court, ascertained that the parties gave such consent and agreement as is recited in his decree, in no manner appears. Even this recital does not say that the parties had consented, in open court, at [680] the January term 1872, that a decree might then be en- ' tered and the cause submitted in vacation, or that they consented to the entry of any decree at the January term 1872; so that it is impossible to say from this record that any clerical misprision was made at the January term 1872, whereby the entry of such decree on the record book, was omitted.
It was decided in the case of Monroe et al. v. Bartlett et al., 6 W. Va. 441, in the language of Judge Haymond, who delivered the opinion of the Court: “A chancery cause can be heard and 'a final decree rendered therein only in open court, unless there be some consent order made in court in relation thereto ; and we do not now determine it to be competent to do so by consent, as-the question does not arise.” Here, no consent order in relation thereto was made at the January term 1872, nor was it, so far as the record shows, ever understood or agreed that any consent order in relation thereto should be entered at the January term 1872. It may be regarded as questionable whether such a consent order could authorize the regular judge of the circuit to enter a final decree otherwise than in open court, and it seems to me quite clear, that such consent order could not authorize any one to enter such final decree in vacation, except the regular judge of the circuit, even if he could be authorized.
Judge Harrison, when the circuit court of Ritchie county adjourned at the close of its January term, ceased at once to have any judicial functions in Ritchie county; and such consent order could no more authorize him to enter upon a final decree in the cause, than it could authorize any other person who had no judicial functions. Judge Harrison, after the adjournment of the January term 1872 of the Ritchie circuit court, had no ■ authority to decide this cause; had he done so, and put his decree of record on the order book of Ritchie county circuit court, such a decree would have been a nullity. He decided the case and sent the final decree to the clerk [681] of Ritchie county circuit court, but without directions to put it on the record book.
What effect had the decree entered by Judge Stuart, at the April term 1872, of the circuit court of Ritchie county ? The operative part of this decree simply orders the papers of the cause to be transmitted to the clerk of Wood county circuit court, and ordered the decree which Judge Harrison, without any authority, had rendered in vacation, to be entered upon the chancery order book of Wood county. So far as this decree ordered the papers of the cause to be transmitted to the clerk of the circuit court of Wood county, it is entirely regular and within the power of Judge Stuart; but so far as it ordered Judge Harrison’s authorized decree, rendered in vacation, to be entered on the chancery book of Wood circuit court, it was not only irregular, but entirely unauthorized by law. The circuit court of Ritchie county clearly had no power, to direct a final decree to be entered on the chancery order book of a county of another circuit. He seems to have derived this authority, as appears from the recitals in the decree, from the supposed consent of the parties to this cause, given in open court at the January term 1872. He was not presiding at that term of the court; and how he learned, that such consent was thus given, does not appear; there is nothing on the records of that term of the court to indicate that such consent was given; and it would seem clear, that neither he nor we can look elsewhere than to the record to ascertain that such consent was given. I cannot think that if the record had shown such consent, that it could have conferred on him such power; and no such consent appearing, it seems to me clear that in making such order he transcended his authority, and such order is therefore a nullity. While in operation therefore as a final decree in the cause, it may be regarded as an adoption by Judge Stuart of the principles upon which was based the decision of Judge Harrison. But if it can be so regarded, it is obvious that these principles were so adopted, merely because [682] they were the conclusions readied by Judge Harrison, and not after an examination of the cause and as a conclusion of his judgment on the merits of eage. _4n(j ^{j0ngjj pe may have had the power so to act, yet it is clear that the parties arc entitled to the judgment of the court on the merits of the case, and that the court ought not to adopt the views of a person unauthorized to decide in the case; and when he has done so under the supposition that it was right and proper, such action ought not to be permitted to stand. What is the effect of the decree rendered by the circuit .court of Wood county at the April term 1872 ? The operative part of this decree is simply to docket the cause in Wood county, which was clearly within the power of the court, and to order the decree of the circuit court of Ritchie county, at its April term, to be entered on the chancery order book of the circuit court- of Wood county This last the courthad no authority to do; and if it could be regarded as adopting the principles, which lay at the foundation of the unauthorized decree of Judge Harrison rendered in vacation, it would be liable not only to the objections above stated to the adoption in this manner of these principles by the circuit court of Ritchie county, but to the further objection that Judge Loomis, the judge of the circuit court of Wood county, was a defendant in the cause, and could not sit to decide on its merits a cause, in which he was interested and a party, and which for that reason he had formerly removed to the circuit court of Ritchie county. It may be said, however, that “while a final decree can be rendered only in open court, unless there be some consent order made in open court in relation thereto,” and perhaps not even then, yet that a decree dissolving an injunction may be rendered in vacation; and that so much of Judge Harrison’s decree as dissolved the injunction in this cause, is not inoperative. But this portion of the decree is also inoperative, being rendered without any authority. Judge Harrison was then the judge of the fourth judicial . [683] circuit, and had no authority in vacation to dissolve an injunction in a cause pending in Ritchie ‘ county, which was in the second judicial circuit. Such an authority to dissolve an injunction is by the statute expressly confined to “the judge of the circuit in which the case is pending, wherein the injunction is awarded that is, in the present case, to Judge Stuart. And this statute further directs the order for the dissolution oí the injunction to be directed to the clerk of the said circuit court, who shall record the same in the order book ■ (see amendment to Code of West Virginia, chapter 31, p. 742). Again, in this case, the record as presented to us does not show that any injunction was awarded, though it seems to be regarded in the decrees as though such injunction was awarded, and it may be a clerical omission, that such order granting the injunction does not appear in the record. The decrees of the April terms of the circuit courts of Ritchie and Wood counties being in operation as final decrees, the question arises: has this court jurisdiction to hear an appeal from these decrees only to reverse them : or should the appeal be dismissed, no final • decree having been rendered in the court below. This question was maturely considered by this Court in the case of Monroe et al. v. Bartlett et al., 6 W. Va. 441, and this Court then decided that, though the decree rendered in that case was final and rendered in vacation ; and though the judge had no authority to render such decree, yet on an appeal taken therefrom the appellate court would not dismiss the appeal because the decree was void, but would take jurisdiction of the cause and decrees so far, and so far only, as to reverse the decree and remand the cause to the circuit court, there to be proceeded with, and heard and determined according to the rules and usages governing courts of equity in this State. And this is the course which should be pursued in this cause. There is even a stronger reason for pursuing this course in this cause than in that. For while in that case the decree appealed from was [684] pronounced absolutely void, in this cause it is at least questionable whether the decrees entered in terra time by the ciuoLiit court of Ritchie county, at the April term 1872, may not be regarded as not entirely inoperative, but as settling the principles of the cause. But as it is obvious on the face of this decree, that the Judge of the circuit court of Ritchie county has never considered or decided this cause or the principles involved in it, on his own judgment; but that said decree was entered simply because the case had been decided by one, who we have seen had no authority to act in the matter, we would be substantially exercising original jurisdiction to decide the case upon its merits. I am therefore of opinion that these decrees should be reversed, and the cause remanded to the circuit court of Wood county.
The decree of the April term 1872, of the circuit court of Ritchie county, must be reversed and annulled, except the portion thereof which ordered the papers of this cause to be transmitted to the clerk of the circuit court of Wood county, which portion of said decree is affirmed. And the decree of the 29th day of April 1872, of the circuit court of Wood county, must also be reversed and annulled, except that portion of it which ordered this cause to be docketed in the circuit court of Wood county; and the appellant must recover of the appellees M. P. Amiss and J. L. Morehead his costs expended in this Court; and this cause is remanded to the circuit court of Wood county, there to be proceeded with and heard and determined according to the rules and usages governing courts of equity in this State.
Judges HaymoND and Moore concurred in this opinion.
Decrees Reversed.