State ex rel. Hodges v. Powers

By the Court.

Lumpicin, J.,

delivering the opinion.

[1.] This application for a mandamus must be refused. In Heard vs. Heard (8 Cta. B. 380) this Court held that the Circuit Judge had no right to interfere with the bill of exceptions after it has been signed and certified by him and filed with the Clerk. That his duty is then performed, and his control over the bill of exceptions at an end. That his power in the premises has entirely terminated. Adhering to the opinion there expressed, and we see no cause to change it, the alteration made in the bill of exceptions in this case, after the same had been filed with the Clerk, together with the original notice, writ of error and citation, as required by law, must be deemed to have been done by the Judge, individually, and not in his official character. He had no more authority to make it than any other person. Great injustice may have been done both to the opposite party, and the Court, by the bill of exceptions as originally signed and certified. We do not say, or even intimate, that such was the fact. But as- was said by this Court, when this point was before it in the case already referred to, “ The presiding Judge must see to it that the bill of exceptions, when presented, is true and consistent with what transpired in the case before him.”

What Judge is there that would not most gladly, at some subsequent period, when it is too late, have altered or “ expunged” from the record, some judgment which he has rendered ? But what is written must remain written.

[2.] It is scarcely necessary to remark, that mandamus does not lie against a private citizen. In every well constituted government, the highest judicial authority must necessarily have a supervisory power over all inferior or subordinate tribunals, magistrates and all others exercising public authority.— If they commit errors, it will correct them. If they refuse to *390 perform their duty, it will compel them — in. the former case by-writ of error — in the latter by mandamus. And it not only lies to ministerial, but to judicial officers. In the former case, it contains a mandate to do a specific act; but in the latter only to adjudicate, to exercise a discretion, upon a particular subject. (Springfield vs. County Commissioners, &c., 10 Pick. Rep. 244 .)

Had Judge Powers refused to sign «bill of exceptions, when duly presented in this case, and the accuracy and correctness of which in reciting the points made, and the opinions excepted to were not questioned, the remedy would have been a plain one. But we disclaim all right of making him responsible to this tribunal by mandamus for an alteration made in the bill of exceptions since it left his hands, and was filed with the Clerk of the Superior Court, his judicial function being fully performed previously thereto.

It is needless, perhaps, to indicate now the course to be pursued, to secure to the plaintiff in error the redress to which he is constitutionally entitled. He must be heard upon the bill of exceptions as it originally stood. When the Clerk of the Superior Court of Dooly county shall transmit the papers in his office to this Court, with the facts authenticated as they actually exist, we will endeavor to award such relief as the exigencies of the case may require. Every Court, we apprehend, possesses, inherently, the power to protect the integrity of its own records. If, upon examination, it shall he found that our organization is defective in this respect, application should be made at once to the Legislature to invest it with this indispensable authority.

Application refused.