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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.4

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. 6

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. This is the constant usage. 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. A judge's decision that he is incompetent through interest is not reversible unless there is manifest error.11

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

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3. Wilks v. State, 27 Tex. App. 385; Tex. Const., art. 5, § 11; Tex. Code Crim. Proc., art. 569; Thompson v. State, 9 Tex. App. 649; Cock v. State, 8 Tex. App. 659; Railroad v. Ryan, 44 Tex. 426. Compare Thomas v. State, 5 How. (Miss.) 30.

4. A judge who was counsel in a criminal case may receive indictment therein, and, it seems, make orders preliminary to trial. Cock v. State, 8 Tex. App. 659.

5. Simon . Haifleigh, 21 La. An. 607. See PREJUDICE, supra.

6. Lines v. Darden, 6 Fla. 37. 7. See note 2, p. 53. 8. Hibbard z. Ödell, 16 Wis. 633; Moses . Julian, 45 N. II. 52, citing Edwards 7. Russell, 21 Wend. (N. Y.) 63; Paddock v. Wells, 2 Barb. (N. Y.) 331; North River Steamboat Co. v. Livingston, 3 Cow. (N. Y.) 713, 724; Ten Eick v. Simpson, 11 Paige (N. Y.) 177; Great Charte . Kensington, 2 Stra. (Eng.) 1173; Bouv. Dict., tit. Judge; Pothier Pro. Civ., ch. 2, § 5.

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Nonsuit. A justice finding he has proceeded in an action wherein one of the parties is his relative, by consanguinity or affinity, must suspend further proceedings; he cannot render judgment of nonsuit. If he does, the judgment will be reversed. Edwards v. Russell, 21 Wend. (N. Y.) 63.

9. Regina v. Justices, 14 Eng. L. & Eq 93.

10. Moses v. Julian, 45 N. H. 52; Pothier Pro. Civ., ch. 2, § 5; Fry v. Bennett, 28 N. Y. 324.

And when a judge was related, but not within the prohibited degrees, it was held that he could not recuse himself and appoint another in his stead. State v. Judge (La.), 6 So. Rep. 22 (1889).

Judge not disqualified cannot recuse himself. Reed v. State, 11 Tex. App. 587.

Proof of Competency.-The judge of probate is a competent witness to prove his want of interest on appeal from him on the ground of his being interested, provided his interest is not such as disqualifies him as a witness generally. Sigourney v. Sibley, 21 Pick. (Mass.)

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11. Childress v. Grim, 57 Tex. 56. See also Slaven v. Wheeler, 58 Tex. 23.

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

JUDGMENTS (See also DECREE; DEfault; DECREE; DEFAULT; ESTOPPEL; EXECUTION; FINAL JUDGMENTS; HABEAS CORPUS; JUDGMENT NOTES; JURISDICTION; LIS PENDENS; MERGER; PARTIES TO ACTIONS; RECORD; RES JUDICATA; SCIRE FACIAS.)

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3. Vacation of Judgments, 126. (a) In General, 126.

(b) Under Statutes for Mistake, etc., 133.

4. Equitable Relief Against Fudgments, 139.

5. Arrest of Judgments, 1476. VII. Collateral Impeachment of Judgments, 147j.

1. Collateral Impeachment De-
fined, 147j.
[147k.
2. Three Classes of Judgments,
3. Collateral Impeachment of
Domestic Fudgments, 147.
(a) By Parties and Privies,
1470.

(1) For Want of Furis-
diction, 1470.

(2) Errors and Irregu-
larities, 1470.
(3) Fraud, 1478.

(4) Disability of De-
fendant, 147u.
(5) Errors and Defects
in Judgment Rec-
ord, 1470.

a. Superior and In-
ferior Courts
Distinguished,

1472.

b. Records. of Superior Courts, Requisites of and Impeachment of, 1470.

1. Records of Inferior Courts; Requisites of and Impeachment of, 148.

(6) In Actions Against Judges, Ministerial Officers or Parties, 148f.

(7) Of Fudgments by Strangers, 148g.

VIII. Judgments of Sister States, 148k. 1. Constitutional and Legislative Provisions, 148k.

2. Courts Subject Thereto, 148k. 3. Judgments Subject Thereto, 148m.

4. Status and Effect of Judgments Generally, 1480.

5. Effect of as Res Adjudicata,
148r.

6. Authentication of, 148s.
7. Action Thercon, 148t.

(a) Form of Action and
Declaration, 148t.

(b) Defences, 148v.

(1) Want of Furisdiction Appearing in Record, 148v.

(2) Want of Furisdiction Proved in Contradiction of the Record, 148x.

(3) Errors of Law or
Practice, 1482.

(4) Fraud, 149.
(5) Statute of Limita-
tions, 149a.

(6) Defences Subsequent
to Fudgment, 149a.
(7) Defences Pleadable
to Original Action,

149a.

(c) Manner of Setting Up Defences, 1496.

(d) Fudgment in Such Action, Amount, 149c.

8. Plea of in Bar to Suit, 149c. IX. Judgments as Evidence, 149d. X. Pleading Judgments, 149f. XI. Actions on Judgments, 1497. XII. Assignment of Judgments, 149 XIII. Judgments by Default, 1499. XIV. Judgments by Confession, 1499.

XV. Judgments in Rem, 1497. XVI. Satisfaction of Judgments, 1491 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.1 The reasons given by the court to sustain its

1. See Davidson v. Smith, I Biss. (U. S.) 351; Blakie v. Griswold, 10 Wis. 241; Cooper v. Am. Central Ins. Co., 3 Colo. 321; Zeigler v. Vance, 3 Iowa 530.

A finding that in a former action a "decision" was rendered, was held not to be equivalent to a finding that a "judgment" was rendered. Gray 7. Noon, 66 Cal. 186.

Other Definitions.—A judgment is the

conclusion of law upon facts found, or admitted by the parties, or upon their default in the course of the suit. Bouv. Law Dict.; Tidd Pr. 930; Thompson 7. People, 23 Wend. (N. Y.) 587; Fraser v. Willey, 2 Fla. 123; Truett v. Legg, 32 Md. 147.

A judgment is "the very voyce of law and right." Co. Litt. 39a.

A judgment is the decision cr sentence of the law, given by a court of

1

decision, 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 the result of proceedings instituted therein for the redress of an injury. Bouv. Law Dict.; 3 Black Com. 395; Blood v. Bates, 31 Vt. 150.

A judgment is the conclusion that naturally and regularly follows from the premises of law and fact, and depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. In re Sedgeley Avenue, 88 Pa. St. 513. A judgment in its legal acceptation is the determination of some judicial tribunal created by law for the administration of public justice according to law, and is in strictness the determination of the law. Blood v. Bates, 31 Vt. 150.

A judgment is the decision of a controversy, given by a court of justice, between parties who do not agree. Union Bank 7. Marin, 3 La. An. 35.

Every final or definitive sentence decision of the supreme court by which the merits of a cause are settled or determined, although such sentence is not technically a judgment, or the proceedings are not capable of being enrolled so as to constitute what is technically called a record, is a judgment. In re Negus, 10 Wend. (N. Y.) 44.

A judgment is the decision or sentence of a court on the main question in a proceeding, or on one of the questions, if there are several. Rap. & L. Law Dict.

A judgment is the decision or sentence of the law, pronounced by a court or other competent tribunal upon the matter contained in the record. Jac. Law Dict.; Aetna Ins. Co. v. Swift, 12 Minn. 437

A judgment is a final decision, entered of record, in a book of judgments under the signature of a judge. Evans 7. Adams, 3 Green (N. J.) 383.

A judgment is a settled adjudication of an existing debt. It is also a power by means of which a creditor may enforce his claims by the sale of the debtor's property. Nichols v. Dissler, 2 Vroom (N. J.) 473.

A judgment is the end of the law. Blystone . Blystone, 51 Pa. St. 373.

A judgment is an adjudication of the rights of the parties in respect to the

claim involved. McNulty v. Hurd, 72 N. Y. 521.

Definitions Under Codes.-A judgment is the final determination of the rights of the parties in an action or proceeding. N. Y. Code, § 245; Kan. Code, § 395; Cal. Code of C. P., § 577: Oreg. Code, § 240. See Freeman on Judg., § 14.

Judgment of his peers means a trial by a jury of twelve men, according to the course of the common law. Knight v. Campbell, 62 Barb. (N. Y.) 34; Wright 7. Wright's Lessee, 2 Md. 453; State v. Simons, 2 Spear (S. Car.) 768.

Judgment Nisi.-What is called a judgment nisi is nothing more than a rule to show cause why judgment should not be rendered. Young . McPherson, Penn. (N. J.) 897.

Fudgment (in criminal law) is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact ascertained by his conviction. Com. v. Lockwood, 109 Mass. 325.

1. Burk v. Table Mountain Co., 12 Cal. 408; Davidson v. Carroll, 23 La. An. 108. But in case of ambiguity, an accompanying opinion may be permitted to govern the meaning of the judgment. New Orleans etc. Ř. Co. v. New Orleans, 14 Fed. Rep. 373.

2. Freeman on Judg. (3rd ed.). § 2; Kramer v. Rebman, 9 Iowa 114; Gregory v. Nelson, 41 Cal. 278.

But orders directing the payment of judgments in coined dollars have been sustained as parts thereof. Hittson v. Davenport, 4 Colo. 169; Chesapeake v. Swain, 29 Md. 483; Paddock 7. Conn. Ins. Co., 104 Mass. 521; Ind Ins. Co. v. Thomas, 104 Mass. 192; Kellogg v. Sweeney, 46 N. Y. 291; Bronson v. Rodes, 7 Wall. (U. S.) 229; Cheang Kee v. U. S., 3 Wall. (U. S.) 320; Butler . Horwitz, 7 Wall. (U. S.) 258; Dewing v. Sears, 11 Wall. (U. S.) 379; Trebilock v. Wilson, 12 Wall. (U. S.) 687. Compare Reed v. Eldredge, 27 Cal. 348; Whitstone v. Colley, 36 III. 328; Ölanyer v. Blanchard, 18 La. An. 616; Buchegger v. Schultz, 13 Mich. 420; Burling v. Goodman, 1 Nev. 314.

3. Stuart 7. Landers, 16 Cal. 372; Morse v. Tappan, 3 Gray (Mass.) 411;

but the better authorities sustain the contrary opinion.1

II. CLASSES OF JUDGMENTS-1. Judgments in the Several Actions. -A judgment quod recuperet (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.5

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 sum 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.11

A judgment of nolle prosequi is entered against plaintiff when

Guire v. Gallagher, 2 Sandf. (N. Y.) 402.
1. Smith v. Harrison, 33 Ala. 706;
Masterson v. Gibson, 56 Ala. 56; Keith
7. Estill, 9 Port. (Ala.) 669; Larrabee v.
Baldwin, 35 Cal. 156; Rae v. Hulbert,
17 Ill. 572;
Wyman 7. Mitchell, I Cow.
(N. Y.)321; Todd v. Crumb, 5 Mc-
Lean (U. S.) 172; In re Kennedy, 2 S.
C., N. S. 226; Freeman on Judg. (3rd
ed.), § 4. See also Burnes v. Simpson,
9 Kan. 658.

2. Freemanon Judg., §7; Steph. Pl. 126.
3. Freeman on Judg., § 7.

4. Bouv. Law Dict.

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

6. Rap. & L. Law Dict.; Grigg v. Gilmer, 54 Ala. 430; Rhodes v. DeBow, 5 Iowa 265.

Under the code there is no difference in principle between a final judgment against a defendant in default for failure to answer and a judgment against defendant nil dicit. Manville 7. Parks, 7 Colo. 128.

7. Bouv. Law Dict. See Stewart v. Goode, 29 Ala. 476.

8. Freeman on Judg., § 7.
9. Freeman on Judg., § 7.
10. Freeman on Judg., § 7.
11. Freeman on Judg., § 7.

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