Not being able to concur with my brethren in the judgment to be rendered in this case, I propose to assign a few reasons for my dissent. The pleadings, the evidence, the course of the trial, the opinion of the Supreme Court, and everything connected with the controversy in that tribunal, indicates that the case was prosecuted and defended upon a theory to be entirely ignored in the judgment now to be pronounced, and the case made to rest upon a view never before considered or suggested. In the beginning of this controversy, every person connected with it appears to have agreed that Balde was to be regarded as an "opposing party" within the meaning of the law, and measures were taken by serving notice supposed to be requisite to bring him into the County Court of the county of Herkimer, to render his account as a special guardian, supposed to have been previously duly appointed by that tribunal. It was adjudged by the Supreme Court, that he was duly brought into the Herkimer County Court for the purpose named, and for the present, it is sufficient to say, that by an apparent decree of the Herkimer County Court, he was bound by his default as guardian in an amount of money, which it was the object of the present action to recover of the defendants as his sureties upon his official bond as guardian.
It is only necessary to refer briefly to the pleadings and proceedings in the Supreme Court, to show upon what theory the action was prosecuted, defended and decided in that court. *Page 304 The complaint averred in due form the facts resulting in the appointment of Balde as special guardian for the sale of the real estate of the infant heirs at law of Mark Folts, and the giving of the bond by the present appellants as the sureties of Balde, that he should discharge his trust with requisite fidelity. It is then alleged that in this respect he failed in his duty, and that in July, 1866, proceedings on behalf of the plaintiff and others were duly taken in the Herkimer County Court, to compel Balde to account as special guardian, and in such proceeding it appeared that Balde had received $402.47, to which the plaintiff was entitled. It is then averred, with a certainty, at least to a "common intent," that afterward at a term of the said Herkimer County Court, held at Herkimer, on or about the 5th day of September, 1866, a decree was made in such matter of accounting, ordering and adjudging that Balde, as special guardian, was indebted to the plaintiff in the said sum of $402.47, and ordering the immediate payment thereof, or that Balde and his sureties be prosecuted on the bond, and the plaintiff refers to the papers and proceedings for said accounting, and the decree made thereon as a part of her complaint, and demanded judgment for the sum claimed to be due. The defendants, Snell and Petrie, denied "each and every allegation" in the complaint contained, and upon this issue the cause went to trial at the circuit.
The plaintiff gave evidence of the proceedings for the sale of the estate of the infant children of Mark Folts, resulting in the appointment of Balde as special guardian — the giving of the bond with the appellants as sureties — and the sale and conveyance of the property, with the approval of the Herkimer County Court; and then also produced and gave in evidence all the papers and proceedings on the alleged accounting in the Herkimer County Court, resulting in the supposed decree of that court relied upon to fix the liability of the appellants.
It may be fairly assumed that my brethren agree with me, that the judgment of the Supreme Court cannot be sustained, secundumallegata et probata, but that it is proper to affirm *Page 305 the order of the General Term for reasons not suggested by the record of the trial, or even alluded to by any judge of the court pronouncing the judgment or order appealed from.
Among other things, it is now suggested that Balde was not an "opposing party," within the meaning of the statute, requiring notice to bring him within the jurisdiction of the County Court. It is, perhaps, sufficient to say that exactly the contrary was assumed by all the parties, and in all the proceedings disclosed by the record, resulting in the judgment of the Supreme Court. But if this suggestion be inconclusive, I think an "opposing party" is not necessarily one who, when summoned into court, must come attended with martial music or any warlike preparation. An "opposing party," within the meaning of the statute, is one requiring notice in order to give jurisdiction over his person, and to a party entitled to such notice, the County Court isnever open to receive him, except at one of its regular terms appointed by law. The question does not at all depend upon how disagreeable a person may make himself when he is once fairly in court, or how much or little contention may thereafter ensue. Ifnotice be required, I think that determines the character of the litigant, so far as the present question is concerned. In this case Balde never got into any Herkimer County Court upon notice, or by any voluntary appearance, unless, indeed, that court is to be regarded as always open to him.
For reasons also before suggested, I do not think the judgment of the Supreme Court should be approved, upon any supposed analogy between the jurisdiction of a County Court and the late Court of Chancery, in respect to its control over the estates of infants. The case was tried upon no such theory. Moreover, the general jurisdiction of the late Court of Chancery has nothing, whatever, to do with the controversy, because the jurisdiction of the County Court is defined by the statute. A county judge or a County Court, with equity power, in the days of the Court of Chancery, was a thing unknown. Their creation and existence resulted from the destruction of the Court of Chancery with all its ramifications *Page 306 and supposed abuses. By the statute, the County Court is not open to an "opposing party," save at one of its regular terms, and there is no provision of the Constitution or the statute, that confers upon a county judge the equity power of a chancellor, which may be invoked at all times, under all circumstances and in all places.
It is further said that the plaintiff's action can be sustained as a bill in equity for an accounting by the guardian, and the order appealed from sustained for that reason. This can only be done if all the pleadings and proofs in the cause shall be ignored; for an accounting is alleged, in the complaint, to have been had and a decree thereupon made, by a court having competent jurisdiction; and all the evidence given by the plaintiff, on the trial, was offered to prove these allegations; and the instruments of evidence were all supposed to be matters of record, importing absolute verity. Beyond this there was nothing to show the condition of the accounts between the plaintiff and Balde, her guardian. If it be possible that, at the trial, the plaintiff might have changed front and proceeded for an accounting in equity, it is now quite sufficient to say, that no such attempt was made, and the appellants have not been required to meet any such form of action. What might have been said or suggested if they had been called upon to respond in that form, we have no means of knowing, and are not at liberty to conjecture.
Having said thus much in the effort to show that our judgment should be pronounced with some reference to the proceedings in the court below, I now proceed to show, if I can, that the nonsuit at the circuit was right, and the order of the General Term of the Supreme Court, granting a new trial, erroneous.
If I have great confidence in the correctness of my views upon this branch of the case, it may be due to the fact that none of my learned brethren propose to affirm the order of the Supreme Court upon any ground which that court, upon the record or otherwise, had under its consideration.
Having shown, to my own satisfaction at least, that the *Page 307 order of the Supreme Court in this case should not be approved for any of the reasons upon which the judgment will, in fact, be given; it is, I think, equally clear, that the action in the Supreme Court ought not to have been maintained upon the theory on which it was prosecuted, defended and decided.
Upon an inspection of the record in this case it appeared to me that the only question was, whether the County Courts, of all the counties in the State may, by agreement between the county judge and parties having business to be transacted in court, be opened at all times and in all places, and decrees and judgments rendered which are to be regarded by all other tribunals as judgments and decrees of a court of competent jurisdiction. The County Courts of the several counties of the State, are created by law, and cannot exercise any jurisdiction except in the manner and form authorized by the law of their creation, or such laws as have been enacted for their guidance. It is very plain that, when the limits, thus prescribed, are departed from, all orders and decrees, attempted to be made, are absolutely void. This would also follow if a court actually existed at the time and exceeded its appropriate jurisdiction; but here, the precise question is, whether, at the time it is alleged that a decree of the County Court of the county of Herkimer was made affecting the rights of the defendants, there was any such court in session, or, it may be said, even in existence.
The statute provides that so many terms of the County Court as the county judge may designate for that purpose, in a notice duly published, may be held for the trial of issues of law, and hearing and decision of motions and other proceedings at which no jury shall be required to attend. (Code, § 31.) And it is also provided that "the County Court is always open for the transaction of any business for which no notice is required to be given to an opposing party." The law, therefore, is that the County Court is not open for the transaction of any business which requires notice to be given to an opposing party, except at the times and places for holding *Page 308 such court duly appointed according to law. In other words, in such cases there is no County Court of a county, except at its regular terms, when it can be legally opened by the county judge for the transaction of all business. A court that cannot be opened is precisely equivalent to no court at all, and during the period of its incapacity it may be said that no court exists by law; and the question seems to be whether one can be created by contract which may pronounce judicial decrees importing absolute verity. I am of the opinion that, under our laws, this cannot be done.
The facts upon which this case depends are very few and simple. The Herkimer County Court had, it is presumed, in due form entertained an application and took the proper proceedings for the sale of land belonging to infants, in which the present plaintiff had an interest; and upon that sale, or the proceedings for a sale, John Balde was appointed the special guardian of the infants and gave a bond, in which the defendants were his sureties, that he should faithfully perform the trust reposed in him "and pay over and account for all moneys and securities that should be received by him, according to the order of any court having authority to give directions in the premises, and should observe the orders and directions of the court in relation to such trust." It appears that Balde, the special guardian, failed to discharge his duty, so that on the 9th of July, 1866, a petition was presented to "Volney Owen, county judge of Herkimer county," on behalf of the plaintiff and others, to call Balde to an account. Upon this petition the county judge, to whom it was addressed, issued a citation to Balde to appear before "the County Court of the county of Herkimer," on the fourteenth of August following, to render his account as special guardian. This citation was duly served, and, on the return day, Balde did not appear, and the proceeding was adjourned to a future day; and on that and a further day, the 5th of September, 1866, Balde agreed, by written stipulation, that "the said county judge" might enter a decree "in his office" for several amounts stated in favor of the plaintiff and others, *Page 309 the heirs of Mark Folts, deceased, and a decree thereon was apparently entered on that day, by virtue of the stipulation, by the County Court of the county of Herkimer, and, under this decree, the defendants, as the sureties of Balde, are now prosecuted in this action. The fact was proved on the trial, that, during all the time of these proceedings, there was no regular term of the Herkimer County Court in session, and that they were in fact had before the county judge at his chambers.
A question of pleading has been made, which I think can be disposed of in a word. The question does not arise upon any issue of nul tiel record, but whether at the time the supposed record was made, there was any "Herkimer County Court" in session, or in existence, authorized to make the record in question. That such a record was, in fact, made and filed, is not questioned, but it is denied that any County Court was open, in session, or then in existence, authorized to make it, and that is the issue. That Balde was "an opposing party," entitled to be heard at an open and regular session of the County Court, I cannot doubt, as has been already said, and such appears to have been the opinion of all parties. The petition of the plaintiff and others was addressed to the "county judge," and yet the citation summoned Balde to appear in the "County Court" when it was not in session, and all the subsequent proceedings were had before the county judge, at his chambers, and the stipulation of Balde only authorizes "the said county judge to enter a decree in his office on said accounting," etc., and unless the county judge was then the County Court, the decree entered upon the stipulation wascoram non judice and void.
Assuming, as all parties did, that Balde was entitled to notice of the proceeding against him, it is very obvious that the County Court was not open, so that he was compelled to appear, save at a regular term, in due form of law appointed. If he had been thus summoned and appeared in court, so that the court having jurisdiction of the subject-matter had it also over his person, it is not unlikely that he might have waived any mere *Page 310 question of formal practice or notice, that was personal to himself. But I am unable to discover that he was ever brought into any legally existing County Court of the county of Herkimer. The proof is to the contrary and is undisputed. I assume that, in accordance with law, there were regular terms of the County Court, for the county of Herkimer, duly appointed, and Balde was never summoned to appear in any such tribunal. Whatever he did was a mere private arrangement between him, his counsel and the county judge, to create a court out of season. This could not be done. It may not be that any actual wrong was done, and it cannot be assumed that any was intended. What I mean to affirm is, that courts of justice in which judgments are to be rendered, can only be created by law. If parties by contract create a tribunal of their own, it may amount to an arbitration, but it is not a court which the laws of this State can recognize in any form.
I am of the opinion that the order appealed from should be reversed, and judgment absolute ordered in favor of the defendants, with costs.
All concur for affirmance, except REYNOLDS, C., dissenting; EARL, C. not sitting.
Order affirmed and judgment absolute ordered against defendants.