dissenting.
*70I dissent from the opinion of the Court. I do not think the reasoning of the majority of the Court sound, nor the result reached law. I shall state my reasons briefly.
Conceding, for the purpose of the argument, that the entry of Aug. 17, 1868, did not show upon its face that it was not a judgment of the Court, it is still clear, from this record, that it was effectually displaced by the entry of Oct. 10, 1870. The last entry shows that the first entry, purporting to be a judgment, was brought to the attention of the Court; that an inquiry into the circumstances under which the clerk recorded it was had; and that the result of that inquiry was, that the clerk recorded it by mistake, and that the counsel of both parties was fully heard in the matter. It would have been more regular for the defendants to file a motion to correct the mistake, and take an order to that effect upon the hearing of the motion. Instead of that, a motion ore terms was made, to which the defendants appeared, without objection to the form of the proceeding; and the matter was heard as fully and fairly, and with all the means of arriving at the truth and doing justice, as if a more formal procedure had been had. I think the criticism of the majority upon the record very trifling.- It puts the form before the substance, the mode of procedure before right and justice.
The ease stands, then, in the attitude of one in which a party moves the Court to correct a mistake of the clerk in entering a judgment; upon the hearing of which motion, the Court finds that such mistake has been made, and proceeds to correct it. This the Court was authorized to do by sections 602 and 604 of the Code, which are as follows: “ Sect. 602. — A District Court shall have power to vacate or modify its own judgments or orders after the term at which such judgment or order was *71made. . . . Third, for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.”
“ Sect. 604. — The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action.”
Acting under this authority, the District Court heard this motion. And this record shows that an entry of judgment was made upon the journal by the clerk, without the intervention of the Court; and the District Court so found. And the record shows that this was a correct finding, as I shall explain hereafter. But whether it was or not is not now the question. The Court had the authority to inquire into the matter: it did so, and it found the fact. Its finding and its order thereon is final and conclusive until reversed. We are not here asked to review or reverse it, but to ignore it. To state the case is to determine it.
Much has been said about the mischief which would result from permitting a District Court to set aside a judgment, and enter another, thereby extending the time for appealing; and especially of setting aside a judgment in the ■ absence of the parties, and without their knowledge. A great deal of this is very true ; but it does not apply to this case. The record in this case shows that the parties had notice, did appear, were heard, the Court duly considered the case, found a certain state of facts, and adjudged accordingly. If objection be made to this course of proceeding, then let the legislature repeal the two sections above quoted. As long as they are the law, we ought to administer them.
A lengthy discourse on the mischief resulting from a *72certain view of the law leads to no very satisfactory result. There are mischiefs in refusing to vacate a judgment entered by mistake, as well as those mentioned in the opinion of the Court. And this case furnishes a good illustration. A cause is heard by the Court: the judge, in the pressure of the business of the term, has not time to consider it so as to reach a conclusion satisfactory to his own mind: he takes the case under advisement; he writes out the result which he has reached; he sends it to some party, — perhaps to another judge holding a succeeding term, perhaps to the clerk, and possibly, as in this case, to the successful party; and then, without the action of the Court, this is recorded in the journal as a judgment, in the absence and without the knowledge of or consent of the unsuccessful party; and the time fixed by law within which an appeal is to be taken passes away. It is said that the parties attend the term at which their cause is determined. Three terms elapsed after this cause was submitted before the decision was made. Were the parties to be supposed to attend all these terms to see that nothing escaped them ? or might they reasonably expect to have some notice of a judgment against them ? And, if entered without notice, are they to lose their appeal from it ? By this means the substantial right of every citizen to be heard in this Court is annihilated, not by any fault or neglect of his, but by a mistake of the clerk. What shall be said of the mischief of such a case ?
I have said enough to show that the entry of October was effectual to avoid that of August, and might stop content with this; but I am willing to look farther, and determine from the whole record whether the earlier in date was a judgment' final and conclusive, or only a finding of a judge upon which a judgment might, under proper circumstances, be entered. The Constitu*73tion vests the judicial authority of the State in certain courts and in justices of the peace. A judge of á District Court possesses no judicial authority to render a judgment. An attempt on his part to do so would be futile. He is clothed with authority only as a constituent part of the Court, established and authorized by law. He is not the Court: he is but the presiding officer of the Court. A judgment, when entered, is not his judgment, but that of the Court. It may be entered on his decision; but his decision is not final: it does not conclude the parties any more than the verdict of a jury. A District Court duly organized must have a judge, a clerk, and a sheriff; and one is quite as essential as the other. One judge only can sit in the District Court at the same time. The Constitution provides that the judges of the Supreme Court shall be assigned to hold District Courts in their respective districts. Accordingly the legislature assigned Mr. Justice Crounse to the third district, Mr. Justice Lake to the second district, and myself to the first district. It required each to live in the district to which he was assigned. It provided that we might hold courts one in the district of another. Mr. Justice Lake must preside alone in the District Court of his district. When he exchanged with one of his brethren, still he must preside alone: but one judge can sit in the District Court. The whole structure of our judicial system contemplates this arrangement. Were it useful or necessary, I might collect the several provisions of the statute, clearly indicating the same view on the part of the legislature. These are familiar principles: they are known to the whole profession, and are almost maxims in the law. I mention them here, not as new, but to recall them to mind; for, in-the light of them, we are able to see very clearly what is the right of the case.
*74This record sh.ows that Judge Lake was holding the District Court for Otoe County when he heard this case. The parties agreeing, he took the papers to his home to consider them; and the term was adjourned. Several terms intervened without a decision. In August, 1868, the Court was in session, Judge Mason presiding. Judge Lake was not present. He could not sit in the Court, for reasons I have already recounted, at the same time Judge Mason was presiding. A paper is then presented to the clerk in the form of a decree, signed by Judge Lake. As his decision, it had no force or value whatever. > He was not present, and was not a judge in that Court then sitting, any more than one of the counsel. He had no authority, even, to render a decision; but the Court, as constituted at the time, might adopt his views, and render a decree accordingly. The paper was given to the clerk, who, mistaking its character, jjlaced it upon the journal without the action of the Court. This gave it no force or effect as a judgment. The clerk cannot render a judgment: a record of judgment made by him, without the order of the Court, would be void. Judge Lake not being present, and not sitting in the Court, the clerk could not render a valid judgment: the attempt to do so would be a nullity. The judgment, to be valid, should have been the judgment of the Court then sitting. But such was not the fact; and the record shows it: it was the finding and the judgment of Judge Labe, an individual.
It is true, if the entry were not signed by Judge Lake, we should infer from it that the decree was the act of the Court: but even then it would be competent for the District Court to inquire what the fact was ; and, if it discovered on its journal an entry of a decree which it did not render, it would only do what was its plain dutv in setting it aside. And this is what was done in *75October. As I bave already said, inquiry was made into tbe fact, and tbe plaintiffs and defendants appeared and were heard; and it was found tbat tbe decree was not tbe act of the Court, and for tbat reason it was disregarded, and treated as a nullity. I am unable to see bow any other course could bave been pursued.
Tbe majority in their opinion bave criticised the action of tbe clerk in inserting in tbe transcript, before tbe entry of March, 1869, a statement tbat “ Hon. O. P. Mason” was “presiding.” At tbe same time, they say tbat tbe transcript should, in its introduction, show before, what judge tbe proceedings were bad. I am unable to see tbat it is very material whether tbe name of tbe judge appears at tbe beginning or in tbe middle of tbe transcript. It is more regular and formal to place it in tbe introduction; but it is not necessary. It is enough if it duly appear; and why find fault with tbe clerk, and impute to him and to parties and counsel some ill-flavored design in making it appear ? If causes are to be adjudged in this Court on tbe mere formality of transcripts filed therein, few cases will ever be determined on their merits. Justice is not administered on any such frivolities. It Was tbe duty of tbe clerk to make this transcript as he did, unless be followed tbe more usual form. And be only disclosed what tbe facts were; namely, that a paper signed by Judge Lake, in tbe form of a judgment, in some way found its way upon tbe journal of tbe Court while Judge Mason was presiding therein, and while, necessarily, Judge Lake was not present. And it is these facts being made to appear by tbe clerk that tbe majority object to. I think the judgment of October, 1870, tbe one rightly before us for review, and tbat tbe motion to dismiss tbe appeal should be overruled.
Appeal dismissed.