A judicial decision made without jurisdiction is a usurpation of power. In order to properly decide this appeal we must have jurisdiction to hear it. Our jurisdiction depends upon the nature of the decision filed by the trial court, construed according to the statute in force when it was made. Prior to 1894 it was provided that "the decision of the court * * * upon the trial of the whole issue of fact, must separately state the facts found and the conclusions of law and it must direct the judgment to be entered thereon." (L. 1876, ch. 448, § 1022; Code Civ. Pro. § 1022.) By an act which took effect on the first of June, 1894, section 1022 was so amended as to add to the words above quoted the following: "or the court * * * in deciding the issues may file a decision stating concisely the grounds upon which such issues have been decided, and direct the judgment to be entered thereon." (L. 1894, ch. 688, § 3.) The next year the section was further amended by striking therefrom the words "in deciding the issues" and it stood thus until the first of September, 1903, when an act went into effect by which the changes made in 1894 and 1895 were wholly omitted and the statute of 1876 restored, so far as the nature and form of a decision by the court or a referee is concerned. (L. 1895, ch. 946, § 1; L. 1903, ch. 85, § 2.)
When the facts found and the conclusions of law are separately stated, the decision, being long in form, has commonly been called "the long form," but when simply the grounds are given without stating the facts found or the conclusions of law, it is usually called "the short form." The latter requires only a general exception to authorize a review of the decision (Otten v. Manhattan Ry. Co., 150 N.Y. 395, 399; Petrie v. Trusteesof Hamilton College, 158 N.Y. 458, 463), while the former requires a specific exception to each ruling. (Drake v. N YIron Mine, 156 N.Y. 90, 92; Daniels v. Smith, 130 N.Y. 696;Thompson v. Hazard, 120 N.Y. 634; Ward v. Craig, 87 N.Y. 550,557.)
The action now before us was tried on the 6th of October, 1902, and decided on the 5th of April, 1903, while the act of *Page 113 1894 was still in force. The only exception filed was "to the findings and decision of this court in said action * * * and to the whole of said findings and decisions."
The decision of the trial judge, twenty-four folios in length, after reciting when and before whom the action was tried, states that "it is decided as follows." Nine paragraphs follow, separately stated, but not numbered, six in the form of findings of fact and three in the form of conclusions of law, although not named as such. Each begins with an independent sentence and is separated from the next by a blank space. To show their nature I will quote the first paragraph in full, as it fairly illustrates that part of the decision which impresses me as containing only "the facts found," separately stated from the conclusions of law. It is as follows: "That the plaintiff is a banking corporation, duly incorporated under the laws of the State of New York, doing business at Watertown, Jefferson County, New York; that on or about the 25th day of December, 1891, the Eureka Chemical Company, a duly incorporated company, doing business at the city of Syracuse, New York, by its officers and agents executed and delivered its note conditioned for the payment of $2,800 in three months after date at the banking office of the plaintiff, which note was payable to the order of G.S. Farmer, Dewitt H. Copley, A.E. Dewey, Hiram Copley, A.E. Nettleton and L.F. Phillips; that all of said persons endorsed said note, and the same was thereupon for value transferred to and discounted by the plaintiff at its date; that when said note became due the same was duly protested for non-payment, of which the endorsers had due notice." This is a complete paragraph standing by itself the same as each of the others, and is a finding of fact in relation to the giving, discounting and protesting of the note in question. It shows that the plaintiff once had a cause of action against the defendants.
The second paragraph states facts relating to a different subject, namely, the recovery of judgment on said note by the plaintiff against the maker, the filing of a creditor's bill against third persons to set aside judgments which were a lien *Page 114 on the property of the maker, the termination of that action in favor of the plaintiff, the collection pursuant to the decree of the sum of $2,576.41, the indorsement thereof upon said note, the demand by the plaintiff of payment of the balance due thereon, the payment of a part thereof, and the demand of the remainder of Nettleton and Dewey "as a balance due upon said note."
The third paragraph relates to the payment by Nettleton and Dewey of "the balance due on said note of $430.70 with the intent and purpose of discharging the debt and" states that "the plaintiff accepted said sum and endorsed the same upon said note and thereupon surrendered said note" to one of the persons so paying.
The fourth paragraph states that the note was voluntarily surrendered by the plaintiff "with full knowledge of all the facts and without any fraud or mistake existing at that time."
The fifth paragraph relates to an appeal in the judgment creditor's action, the reversal of the judgment therein, the restitution made pursuant to order, the demand by the plaintiff of the note and of payment of the balance thereon with the costs of the suit in the creditor's action, etc. Thus paragraphs two to five inclusive relate to a defense to the cause of action set forth in the first.
The sixth paragraph states, as the reason why Nettleton and Dewey were the only parties served with process, that the other indorsers were insolvent. It also states that Mr. Dewey had died during the pendency of the action, and that his legal representative had been duly substituted.
These are the findings of fact, standing by themselves, full and complete and designed to sustain the conclusions of law, which follow in the next three paragraphs, separated from the other findings by a convenient interval. The first is that owing to the absence of evidence to show that Dewey or Nettleton requested the plaintiff to commence the creditor's action, "there is no liability on the part of the defendants Nettleton and Dewey to pay the costs incurred by the plaintiff upon the trial of the said action." That conclusion of law disposed of *Page 115 the question relating to the costs in the action against third parties, leaving the question in relation to liability on the note undisposed of. The next paragraph states that as the note was paid after maturity and voluntarily surrendered by the plaintiff to Nettleton and Dewey under the circumstances previously found, "such voluntary surrender operated as a release and discharge from any liability against said defendants, Albert E. Nettleton and Addice E. Dewey." That decided the remaining question of law by stating the appropriate conclusion. The last paragraph is simply the direction for judgment dismissing the complaint upon the merits as to the defendants Nettleton and Dewey, with costs. There must be a direction for judgment in both forms of decision, but that is the only feature common to both.
This decision, as I read it, does not state "concisely the grounds" upon which it was made, as distinguished from a statement of "the facts found and the conclusions of law." It is not a direction for judgment with an argument to justify it. The "grounds" of a decision in a short form are like a brief argument of counsel in favor of his theory of the case, in which law and fact are not separated but commingled. A separate statement of the facts in the long form of decision is like the allegations of fact in a well-drawn pleading, while the conclusions of law are the announcement of the legal rules applicable to those facts. It is unnecessary to label either the facts or the law, because they classify themselves according to their nature and cannot be changed if classified wrongly, by court or counsel. If a fact is characterized as a conclusion of law, that does not make it one, for it is a fact still, regardless of the name given to it. The real nature of this decision would not have been changed if the trial court had said "I find as facts" at the head of the first six paragraphs, or "I find as conclusions of law" at the head of the last three. The six paragraphs contain nothing but facts and the three nothing but conclusions of law. They are separately stated, in the usual form and the usual order, the facts first and the law last. They are exhaustively stated, *Page 116 so as to embrace all the material facts with all the conclusions of law governing the rights of the parties according to those facts. They follow the ancient form, adopted by courts and referees long before the unfortunate innovation was made in 1894. Nothing is wanting except the name, which the law does not require. The statute does not provide that the facts shall be named or characterized as facts, or the conclusions of law as such, but simply that the court "must separately state the facts found and the conclusions of law." The nature of a finding shows whether it is a fact or a conclusion of law, or whether it is an argument giving the "grounds" or reasons for a decision in the short form, which usually begins with the direction for judgment and ends with a concise argument to show why such direction was made.
The understanding of the trial judge as to the nature of his decision may be gathered from the closing sentences of his opinion, where he says: "Proper findings may be prepared. If not agreed upon they will be settled upon notice." Having made his argument and stated his "grounds" in an opinion, all that was needed was a statement of the facts found and the conclusions of law, which was prepared accordingly. A settlement on notice of a decision in the short form is unknown, for no judge would ask counsel to prepare an argument for him, but is common where the decision is in the long form. The same is true of a finding that representatives of a deceased party have been substituted during the pendency of the action. I find all the essential characteristics of the one form present and of the other absent.
I think the decision in question is in the long form, because it separately states the facts found and the conclusions of law and does not merely state the grounds or reasons for directing judgment. We should not attempt to review the decision, because the exceptions thereto are insufficient to authorize it, as appears from the authorities already cited. As the three exceptions taken by the plaintiff to rulings relating to evidence are manifestly frivolous, we are without jurisdiction to decide the questions discussed in the prevailing opinion *Page 117 Without expressing my views upon the merits, which are not before us if I read the decision correctly, I vote to dismiss the appeal.
CULLEN, Ch. J., GRAY, BARTLETT and HAIGHT, JJ., concur with O'BRIEN, J.; WERNER, J., concurs with VANN, J.
Judgment reversed, etc.