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and other appeal papers, and the certiorari will be quashed.1 Where the former client has dropped out of the case, the judge's incompetency ceases. A judge is inhibited from sitting in a criminal case wherein he has been of counsel for the State or the accused.3 Power of disqualified judges to make formal orders has already been mentioned.

11. Practice, Evidence, etc.—The burden of showing incapacity falls on the party asserting it.” A rehearing shall not be prevented because most of the court are new members who did not sit at first hearing:

A judge who has been counsel in the case may recuse himself of his own motion." The judge who is satisfied that he is legally disqualified, ought not to wait until the parties object to him, but should refuse to hear the case by an entry in the docket that he does not sit in the case.8 This is the constant usage.9 But it has been said that “a judge ought not to withdraw upon a mere suggestion, unless the cause of recusation is true in fact and sufficient in law; because the office of judge is one necessary for the administration of justice and from which a judge should not be permitted to withdraw without sufficient grounds."10 A judge's decision that he is incompetent through interest is not reversible unless there is manifest error.

As it often happens that the judge knows nothing of the dis


1. People v. Suffolk Common Pleas, Nonsuit.-A justice finding he has 18 Wend. (N. Y.) 550. See also Nu- proceeded in an action wherein one of gent v. Stark, 34 La. An. 628.

the parties is his relative, by consan2. Bryan v. Austin, 10 La. An. guinity or affinity, must suspend further -612.

proceedings; he cannot render judg3. Wilks v. State, 27 Tex. App. 385; ment of nonsuit. If he does, the Tex. Const., art. 5, § 11; Tex. Code judgment will be reversed. Edwards Crim. Proc., art. 569; Thompson 2. 2. Russell, 21 Wend. (N. Y.) 63. State, 9 Tex. App. 649; Cock v. State, 9. Regina r. Justices, 14 Eng. L. & 8 Tex. App. 659; Railroad r'. Ryan, 44 Eq 93: Tex. 426. Compare Thomas v. State, 10. Moses v. Julian, 45 N. H. 52; Po5 How. (Miss.) 30.

thier Pro. Civ., ch. 2, § 5; Fry 7. Ben4. A judge who was counsel in a nett, 28 N. Y. 324. criminal case may receive indictment And when a judge was related, but therein, and, it seems, make orders pre- not within the prohibited degrees, it liminary to trial. Cock v. State, 8 Tex. was held that he could not recuse himApp. 659.

self and appoint another in his stead. 5. Simon '. Haifleigh, 21 La. An. State z'. Judge (La.), 6 So. Rep. 22 607. See PREJUDICE, supra.

(1889). 6. Lines v. Darden, 6 Fla. 37.

Judge not disqualified cannot recuse 7. See note 2, p. 53.

himself. Reed v. State, 11 Tex. App. 8. Hibbard z'. Odell, 16 Wis. 633; 587. Moses 7'. Julian, 45 N. 11. 52, citing Proof of Competency.—The judge of Edwards v. Russell, 21 Wend. (N. Y.) probate is a competent witness to prove 63; Paddock 7. Wells, 2 Barb. (N. Y.) his want of interest on appeal from him 331; North River Steamboat Co. 7'. on the ground of his being interested, Livingston, 3 Cow. (N. Y.) 713, 724; provided his interest is not such as disTen Eick z'. Simpson, 11 Paige (XY) qualifies him as a witness generally. 177; Great Charte ?'. Kensington, 2 Sigourney v. Sibley, 21 Pick. (Mass.) Stra. (Eng.) 1173; Bouv. Dict., tit. Judge; Pothier Pro. Civ., ch. 2, 11. Childress 2. Grim, 57 Tex. 56. 0 5.

See also Slaven z'. Wheeler, 58 Tex. 23.


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qualification, it is the right and duty of the party desiring to
object, to petition the court requesting that the judge shall not

sit. 1



I. Definition, 58. II. Classes of Judgments, 61. 1. Judgments in the Several

Actions, 61. 2. Distinction Between De

crees and Fudgments, 63.

3. Final Fudgments, 63. III. Practice in Entering Judg

ments, 70.
1. In General, 70.
2. Fudgment Roll or Record,

3. Entries Nunc pro Tunc,

8o. IV. Effect of Judgments Upon Per

sons, 82.



1. Parties to Judgments, 82.

(a) General Principles, S2.
(6) Persons Under Disabili -

ties, 87.
(1) Infants, 87.
(2) Married

Women, ()

(3) Lunatics, 90.
(c) Persons Acting in Rep-

resentative Capacity,
(1) General Rule, 90.
(2) Executors and Ad-

ministrators, 91.
(3) Trustees, 92.
(d) Persons in Other Re-

lations, 92.
(1) Privity, 92.
(2) Principal a and

Agent, 93.
(3) Assignees and Ven-

(8) Ejectment, 96.
(9) Officers and Success-

ors, 96.
(10) Co-owners of Prop-

erty, 96. (11) Life Tenant and

Remainder men,

96. (12) Parties Not of

Record, 97 (13) Parties Without

Notice, 97: (14) Corporation and

Stockholder, 97 (15) Principal and

Surety, 98. (16) Landlord and Ten

ant, 102. (17) Vendor and Vendee, (18) Warrantor a and

Warrantec, 103. (19) Creditor

Assignee in Attach

ment, 103 2. Persons Bound by Lis Pen

dens, 104. 3. Merger of Cause of Action,

104. 4. Fudgment as an Estoppel,

104. V. Effect of Judgments Upon

Property, 104.
1. Lien of Fudgments, 104.

(a) Nature of Lien, 104.
(6) Creation of Lien, 104.
(c) Property Subject to

Lien, 107.
(d) Priority of Lien, 110.
(e) Extension, Suspension

and Discharge of Lien,

117 VI. Direct Impeachment of Judg

ments, 120.
1. Amendment, 120.
2. Reversal, 125.

dees, 93

(4) Bailor and Bailee,

93. (5) Garnisher and Gar

nishee, 94

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(6) Heirs and Devisees,

95. (7) Lessor and Lessee,


1. Moses v. Julian, 45 N. H. 52; the court of which he is a member Just. Code, lib. I, tit. 1, 16; Voet ad pass upon it. Waterhouse v. Martin, Pand., 1. 5, tit. I, 43.

Peck (Tenn.) 374; Trustees of InterIt does not rest with the judge alone nal etc. Fund v. Bailey, 10 Fla. to decide upon his qualification, but 238.

3. Vacation of Fudgments, 126. VIII. Judgments of Sister States, 148k. (a) In General, 126.

1. Constitutional and Legisla(6) Under Statutes for Mis

tive Provisions, 148k. take, etc., 133.

2. Courts Subject Thereto, 148k. 4. Equitable Relief Against

3. Judgments Subject Thereto, Fudgments, 139.

148m. 5. Arrest of Fudgments, 147b.

4. Status and Effect of FudgVII. Collateral" Impeachment of

ments Generally, 1480. Judgments, 147).

5. Effect of as Res Adjudicata, 1. Collateral Impeachment De

148r. fined, 147).


6. Authentication of, 148s. 2. Three Classes of Fudgments,

7. Action Thereon, 148t. 3. Collateral Impeachment of

(a) Form of Action and Domestic Fudgments, 1477.

Declaration, 148t. (a) By Parties and Privies,

(6) Defences, 148v. 1470.

(1) Want of Furisdic(1) For Want of Juris

tion Appearing in diction, 1470.

Record, 148v. (2) Errors and Irregu

(2) Want of Jurisdiclarities, 1470.

tion Prored in Con(3) Fraud, 1475.

tradiction of the (4) Disability of De

Record, 148x. fendant, 1470.

(3) Errors of Law or (5) Errors and Defects

Practice, 1482. in Fudgment Rec

(4) Fraud, 149

(5) Statute of Limitaa. Superior and In

tions, 1490. ferior Courts

(6) Defences Subsequent Distinguished,

to Fudgment, 1490. 1470.

(7) Defences Pleadable b. Records. of Su

to Original Action, perior Courts,

149a. Requisites of and

(c) Manner of Setting tp Impeachment of

Defences, 1496. 147v.

(d) Fudgment in Such Ac1. Records of In

tion, Amount, 1490. ferior Courts;

8. Plea of in Bar to Suit, 149c. Requisites of and IX. Judgments as Evidence, 149d. Impeachment of, X. Pleading Judgments, 149f. 148.

XI. Actions on Judgments, 149j. (6) In Actions Against

XII. Assignment of Judgments, 1497 Fudges, Ministerial XIII. Judgments by Default, 1499. Officers or Parties, XIV. Judgments by Confession, 1499. 148f.

xv. Judgments in Rem, 149v. (7) Of Judgments by XVI. Satisfaction of Judgments, 149.1 Strangers, 148g.

XVII. Revival of Judgments, 150f. I. DEFINITION.—A judgment is the decision or sentence of the law pronounced by a court or other competent tribunal in a proceeding therein. The reasons given by the court to sustain its

ord, 147v.

Iowa 530.

1. See Davidson v. Smith, 1 Biss. conclusion of law upon facts found, or (U. S.) 351; Blakie r'. Griswold, 10 admitted by the parties, or upon their Wis. 241; Cooper v. Am. Central Ins. default in the course of the suit. Bouv. Co., 3 Colo. 321; Zeigler v. Vance, 3 Law Dict.; Tidd Pr. 930; Thompson

v. People, 23 Wend. (N. Y.) 587; FraA finding that in a former action ser v. Willey, 2 Fla. 123; Truett '. a "decision"

was rendered, was Legg, 32 Md. 147. held not to be equivalent to a finding A judgment is "the very voyce of law that a “judgment” was rendered. Gray and right.” Co. Litt. 390. v. Noon, 66 Cal. 186.

A judgment is the decision cr senOther Definitions.-A judgment is the tence of the law, given by a court of

decision, 1 and the award of execution,2 are not parts of the judgment. It has been affirmed that a judgment is a contract or in the nature of a contract,3



justice or other competent tribunal, as claim involved. McNulty v. Hurd, 72 the result of proceedings instituted N. Y. 521. therein for the redress of an injury. Definitions Under Codes.-A judgBovv. Law Dict.; 3 Biack Com. 395; ment is the final determination of the Blood v. Bates, 31 Vt. 150.

rights of the parties in an action A judgment is the conclusion that proceeding. N. Y. Code, $ 245; Kan. naturally and regularly follows from Code, Ø 395; Cal. Code of C. P., O the premises of law and fact, and de- 577; Oreg. Code, s 240. See Freeman pends not therefore on the arbitrary on Judg., § 14. caprice of the judge, but on the settled Judgment of his peers means a trial and invariable principles of justice. by a jury of twelve men, according to In re Sedgeley Avenue, 88 Pa. St. 513. the course of the common law. Knight

A judgment in its legal acceptation v. Campbell, 62 Barb. (N. Y.) 34; is the determination of some judicial Wright v. Wright's Lessee, 2 Md. 453; tribunal created by law for the admin- State v. Simons, 2 Spear (S. Car.) istration of public justice according to 768. law, and is in strictness the determina- Judgment Nisi:- What is called a tion of the law. Blood v. Bates, 31 Vt. judgment nisi is nothing more than a 150.

rule to show cause why judgment A judgment is the decision of a con- should not be rendered. Young 7. Mctroversy, given by a court of justice, Pherson, Penn. (N. J.) 897. between parties who do not agree. Judgment (in criminal law) is the Union Bank v. Marin, 3 La. An. 35. appropriate word to denote the action

Every final or definitive sentence of the court before which the trial is or

decision of the supreme court had, declaring the consequences to the by which the merits of a cause convict of the fact ascertained by his are settled

deterinined, al- conviction. Com. v. Lockwood, 109 though such sentence is not techni- Mass. 325. cally a judgment, or the proceedings 1. Burk v. Table Mountain Co., 12 are not capable of being enrolled so as Cal. 408; Davidson v. Carroll, 23 La. to constitute what is technically called An. 108. But in case of ambiguity, an a record, is a judgment. In re Negus, accompanying opinion may be per10 Wend. (N. Y.) 44.

mitted to govern the meaning of the A judgment is the decision or sen- judgment. New Orleans etc. Ř. Co.v. tence of a court on the main question New Orleans, 14 Fed. Rep. 373. in a proceeding, or on one of the ques- 2. Freeman on Judg. (3rd ed.). 2; tions, if there are several. Rap. & L. Kramer v. Rebman, 9 Iowa 114; GregLaw Dict.

ory v. Nelson, 41 Cal. 278. A judgment is the decision or sen- But orders directing the payment of tence of the law, pronounced by a judgments in coined dollars have been court or other competent tribunal upon sustained as parts thereof. Hittson z'. the matter contained in the record. Davenport, 4 Colo. 169; Chesapeake v. Jac. Law Dict.; Aetna Ins. Co. v.

Aetna Ins. Co. v. Swain, 29 Md. 483; Paddock 7. Conn. Swift, 12 Minn. 437.

Ins. Co., 104 Mass. 521; Ind Ins. Co. 7. A judgment is a final decision, en- Thomas, 104 Mass. 192; Kellogg v. tered of record, in a book of judgments Sweeney, 46 N. Y. 291; Bronson z'. under the signaiure of a judge. Evans Rodes, 7 Wall. (U. S.) 229; Cheang '. Adams, 3 Green (N. J.) 383.

Kee v. U.S., 3 Wall. (U. S.) 320; ButA judgment is a settled adjudication ler 2. Horwitz, 7 Wall. (U. S.) 258; of an existing debt. It is also a power Dewing v. Sears, 11 Wall. (U. S.) 379; by means of which a creditor may en- Trebilock 2. Wilson, 12 Wall. (U. S.) force his claims by the sale of the 687. Compare Reed z'. Eldredge, 27 debtor's property. Nichols v. Dissler, Cal. 348; Whitstone 2. Colley, 36 ill. 2 Vroom (N. J.) 473.

328; Olanyer . Blanchard, 18 La. An. A judgment is the end of the law. 616; Buchegger v. Schultz, 13 Mich. Blystone v. Blystone, 51 Pa. St. 373. 420; Burling . Goodman, 1 Nev. 314.

A judgment is an adjudication of the 3. Stuart v. Landers, 16 Cal. 372; rights of the parties in respect to the Morse v. Tappan, 3 Gray (Mass.) 411;

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but the better authorities sustain the contrary opinion."

II. CLASSES OF JUDGMENTS—1. Judgments in the Several Actions. A judgment quod recuperct (that he do recover) is given for the plaintiff when an issue of law formed by a demurrer to any of the pleadings in chief is determined in his favor.2

A judgment respondeat ouster is given for the plaintiff on demurrer to a plea in abatement, when the defendant has mistaken the law on a point not affecting the merits of the case, and it allows him to plead any further defence he may have.3

A judgment of nil capiat per breve or per billum is a judgment in favor of the defendant upon an issue raised upon a declaration or peremptory plea.4

A judgment quod partes replacitent is a judgment for repleader when an issue has been formed and a verdict returned upon so immaterial a point that the court cannot know for whom to give judgment.

Judgment by default is obtained when one party neglects to take a certain step in the action within the proper time.6

A judgment nihil dicit is one rendered against a defendant for want of a plea.?

A judgment non sumn informatus is rendered against defendant when he enters upon the record that he is not informed of any defence to the action.8

A judgment by confession (relicta verificatione) is entered against a defendant when instead of entering a plea he confesses the action or when after pleading and before trial he abandons his plea.9.

A judgment non obstante veredicto is a judgment rendered notwithstanding a verdict when the plea confesses a cause of action and relies upon matter in avoidance which is insufficient, although found true, to constitute either a defence or a bar to the action. 10

A judgment of non pros. (non prosequitur) is entered against the plaintiff before any issue is joined for not declaring, replying or surrejoining or for not entering the issue agreeably to the rules of the court.

A judgment of nolle prosequi is entered against plaintiff when


Guire v. Gallagher, 2 Sandf. (N. Y.) 402. 6. Rap. & L. Law Dict.; Grigg 2'.

1. Smith 2. Harrison, 33 Ala. 706; Gilmer, 54 Ala. 430; Rhodes z'. De Bow, Masterson v. Gibson, 56 Ala. 56; Keith 5 Iowa 265. 2. Estill, 9 Port. (Ala.) 669; Larrabee v. Under the code there is no Baldwin, 35 Cal. 156; Rae v. Ilulbert, difference in principle between a 17 111. 572; Wyman z. Mitchell, i Cow. final judgment against a defendant (N. Y.)321; Todd 2'. Crumb, 5 Mc- in default for failure answer Lean (U. S.) 172; In re Kennedy, 2 S. and a judgment against defendant C., N. S. 226; Freeman on Judg. (3rd nil dicit. Manville z'. Parks, 7 Colo. ed.), § 4. See also Burnes r'. Simpson, 128. 9 Kan. 658.

7. Bouv. Law Dict. See Stewart '. 2. Freemanon Judg., 97; Steph. Pl. 126. Goode, 29 Ala. 476. 3. Freeman on Judg., $ 7.

8. Freeman on Judg., § 7. 4. Bour. Law Dict.

9. Freeman on Judg., $ 7. 5. Freeman on Judg., § 7; Bouv. Law 10. Freeman on Judg., $ 7. Dict.

11. Freeman on Judg., $ 7.

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