dissenting on the question of jurisdiction involved. Not being able to concur in the majority opinion on the question of jurisdiction, I have filed a dissenting opinion as to that. I concur, however, in the majority opinion on the merits.
Inasmuch as the first question which presents itself in this case, is a question of jurisdiction upon which I think the appeal should be dismissed, it will not be necessary to state the general facts of the cause, or to discuss the questions arising thereon. It will only be necessary to state the facts upon which the jurisdictional question depends. The case was heard at the November term of the Court of Common Pleas, for Newberry County, 1886. This court was held continuously from November 8, 1886, till December 6, inclusive, Judge Fraser presiding, whose term of office expired on December 2. He was re-elected some time after this; so that there was an interval of days between the expiration of his previous term, December 2, and his re-election. *452The case below was heard before December 2, but the decree was dated and filed on December 6. during the interval, though it is stated in the “Case” that it had been written before the 2nd. The question upon these facts is, can this be regarded as a decree of a court? If not, there has been no judgment from which an appeal can be brought here, as we are only authorized to entertain appeals from judicial tribunals, and to correct errors at law of judicial officers.
It is admitted that the decree, though dated and filed after the expiration of Judge Fraser’s term, was written before. Now, the question arises, and it is the first question in order — did the fact of its being written before, make it the decree of the court at that time and entitle it to be filed afterwards ? In other words, when does a decree become the judgment of a court? Does it become so at the time it may have been prepared in the chamber of the chancellor, or when announced and filed in the proper office? It is well established, that a decree can have no lien on property until filed in the proper office, and it would seem, therefore, that so far as third parties are concerned, at least, until said filing there is no decree. But we have been referred to no case, nor have we found one ourselves, involving this precise point here, so that in adjudging it, having no aid from previous cases, either authoritative or otherwise, we must determine it according to our view of the construction to be given to the terms, decree and judgment.
A decree is defined to be, “to determine,” “to order,” “to determine judicially and decisively.” And a judgment is the final determination of the rights of the parties in the action. Now, it appears to us, that nothing can be said to be determined decisively and finally by a judge until his determination is announced and promulgated. Up to that time, whatever may be the conclusion of his own mind, this conclusion is subject to change and alteration. Previous to promulgation there can be no order, nor can parties take notice thereof, or be bound thereby. And certainly while it is in the breast of the judge it can have no effect whatever. It can neither be assailed, set aside, enforced, nor enjoined, for the reason that it has no existence.
It is conceded that the term of Judge Fraser of which he was *453in possession at the time the cause was heard had expired when his decree was filed, and that at that time he had not been reelected. He was not, therefore, a judge de jure. Wast he a judge de facto? In the case of Kottman and Wife v. Ayer (3 Strob., 92), the old Court of Appeals fully discussed the question of officers de jure and defacto, citing all the cases decided up to that time. That was a case in which a magistrate had taken a relinquishment of inheritance by a married woman, after he had been appointed, but before he had qualified; in fact, he never qualified under this appointment. The court held the relinquishment valid, because the magistrate was at least a de facto officer, on the ground that he was in office by appointment, and was actually discharging the duties thereof, thus coming under the general principle, which the various cases cited in the opinion sustained, to wit: that where the electing or appointing power has conferred the office on one, and he is in the actual discharge of its duties, without his title being questioned in any legal way, the community in which he lives have a right to regard him as a legal officer, and his official acts as to them are valid, the court, in substance, saying that where the usual evidences of official right are united, viz., appointment to and the actual discharge of the duties of the office, the acts of the officer as to third parties are valid, because he is a judge de jure, if his appointment was legal and he had qualified, and at least de facto, even if his appointment was insufficient, yet affording a color of right. And this seems to be the result of all the cases referred to in that opinion, and of all the cases that we have been able to find, to wit: a defacto, as distinguished from a de jure, officer is one in office under some color of right, either an appointment, or an election, or in some way by an authority claimed to have been exercised in his behalf, and then actually discharging the duties thereof, in whole or in part.
It is true that in some of the cases general phrases have been sometimes used, which, if construed literally, would include all those who were actually discharging the duties of the office, whether he had any color of right thereto, by a claimed appointment or election, or not. But upon an examination of the decided cases in which the officer has been held to be a de facto one, it *454will be found that he was in office by virtue of some appointment which was claimed to afford a colorable right at least. The case of Kottman v. Ayer, supra, cites many cases on this subject, including several marking the exceptions to the doctrine herein, and as we have said, in some of them strong expressions are found extending the defacto doctrine to those in the exercise of an office whether under color of right or not. For instance, O’Neall, J., in McBee v. Hoke (2 Speer, 145), said: “But I take the broad ground, that being found in an office, of which he had been the incumbent for many years, the plaintiff had the right to regard him as coroner, and his acts for them are good. * * * One in office and transacting its duties is supposed to be rightfully there, and, so far as third persons are concerned, that presumption legalizes his acts.” And Evans, J., in Kottman v. Ayer (3 Strob., 92), in referring to these propositions laid down by O’Neall, J., said: “These propositions, although not absolutely necessary to be affirmed in that case and which may be supposed to be mei’e dicta, I propose to show are supported by authority.” And in the case of Ex parte Norris (8 S. C., 473), Willard, A. J., said: “That to constitute an officer de facto, he must have a presumptive or an apparent right to exercise the office, resulting from either full and peaceable possession of the powers of such office, or reasonable color of title, with actual use of the office.”
Upon an examination, however, of the facts in the eases in which these expressions were used, it will be found that in each the officer was in possession of the office in question by some color of right, either appointment or election, and, therefore, the question considered was not really involved. Hence these propositions must be regarded as mere dicta. But, be that as it may, and assuming that the law as announced in these broad propositions is the true doctrine on this subject, was Judge Fraser in the full and peaceable possession of the office to the duties of which the filing of the decree in controversy belonged, so far as the parties litigant are concerned, at the time when he filed said decree ? It is conceded that at that time his term had expired, and the office was actually and legally vacant. Now, if with a knowledge of this fact, and with the acquiescence of these litigants, *455he had gone on and exercised the functions of a second term, then perhaps it might be said that he was in the full and peaceable possession of the powers of said second term, to which he was afterwards elected, and under the principle announced above by Willard, A. J., he might be regarded as a de facto judge at that time. But these are not the facts. On the contrary, Judge Fraser overlooked the fact that his term had expired on December 2, and he filed the decree as of that term, the parties litigant not being present, and not acquiescing in any way in such filing. It does not seem to us that in the exercise of a single judicial function like this and under these circumstances, that it can be rightfully said that he was in the full and peaceable possession of the powers of the office to which his act belonged, to wit: the second term, and that such should bind parties who were not present, and who in no way contributed to it.
In the case of Wilcox v. Smith (5 Wend., page 234; 21 A. D., 213), Sutherland, J., said: “It will be observed that these cases * * * do not go upon the ground that the claim by an individual to be a public officer, and his acting as such, is merely prima facie evidence that he is an officer de jure, but the principle they establish is, that an individual coming into office by color of an election or appointment, is an officer de facto, and his acts in relation to the public or third persons are valid until he is removed, although it be conceded that his election or appointment was illegal. His title shall not be inquired into. The mere claim to be a public officer, and the performance of a single, or even a number of acts in that character would not perhaps constitute an individual an officer defacto. There must be some color of an election or appointment, or an exercise of the office, and an acquiescence on the part of the public for a length of time which -would afford a strong presumption of at least a colorable election or appointment.” The above as it appears to me is the correct doctrine. And I do not see how it can be said that Judge Fraser was in the possession of the vacant office to which his decree belonged, and that the public had acquiesced in this, when neither he nor the public knew that said office was vacant, and when, instead of claiming the new term, he supposed that his, *456previous term had not expired, and the filing of the decree was by virtue of his powers incident to that term.
I conclude, that the previous term of Judge Fraser having expired when he filed the decree, the filing could not attach to that term, nor could it be referred to the second term, because at that time he had not been re-elected, nor was he claiming to exercise its duties by any color of title nor by actual possession of the vacant office. He was, therefore, neither a defacto nor a de jure officer. The case of The State v. Anone (2 Nott & McC., 30), relied on by the respondent to the position, that no objection having been made at the trial, none can be made now, does not apply here. Judge Fraser had the right to hear the case, because at the hearing his office had not expired, and the appellant, therefore, could not have objected then, and after the decree was filed, it was too late to object. It seems, however, that when Judge Fraser returned after his re-election, to hold an extra court,.and some proposition was made to sign and promulgate the decree, the appellant did then object.
It being my opinion that Judge Fraser was neither a de facto nor de jure judge at the time the decree in question was filed, it follows that said alleged decree, in my opinion, is not the judgment of a court, and, therefore, is not within the jurisdiction of this court on appeal, upon its merits.
Judgment affirmed.