Reyburn v. Bassett & Bracket

1 McCahon 86

Opinion

By the Court —

Pettit, C. J.

This is a petition in error to reverse an order of the judge of the second district, made in vacation, sitting in Douglas county, discharging an attachment which had been issued in this cause. Up to about the time this order was made, it had been the uniform custom, in all the districts, to hear these motions arid grant these orders in vacation, and its propriety, so far as we know, had not been questioned by any member of the bar in the territory ; but, on an examination of the Code of 1859, we are satisfied it does not confer this power on the judge in vacation. When a law authorizes or contemplates the doing of a judicial act, it is and must be understood to mean that the court, in term time, may or must not do it, and the judge, in vacation, unless expressly conferred by the words of the law. The Code of 1859 does not do this, and for this reason we reverse the order, expressly and purposely waiving a decision on any other point.

Order. — The order is reversed, at the costs of the defendant in error, and the cause remanded for further proceedings below, etc.