Gardner v. Price , 199 Miss. 809 ( 1946 )


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  • DISSENTING OPINION.
    While readily agreeing that appellants suffered an injustice, if they can establish the facts alleged in their bill, yet, in my opinion, the danger of the announced rule overbalances the injustice, if any, in a particular case. The bill alleges that on a day during the circuit court the attorney for appellants saw the justice of the peace in Belzoni and asked him to continue the case, to which the justice of the peace assented. That conversation did not take place in the courtroom of the justice of the peace while he was holding court. It was merely a personal conversation. There was nothing judicial about it. The justice of the peace had no power to continue the case except when his court was duly in session, nor should he have attempted to agree thereto without notice to opposing party. The announcement in 34 C.J., quoted in the main opinion, is careful to confine the statement of the judge to one made "officially by the court." A footnote thereto cites Missouri, etc., R. Co. v. Crowe,9 Kan. 496. In that case the Court said: "If a statement of a judge out of court is judicial, then an attorney has the right to *Page 819 rely on it, and plead it in any proceeding that may arise. If it is not judicial, then a party may rely upon it, but at his peril. If it is judicial, then the other side has a right to be present, is entitled to notice, and may be allowed to except. It is idle to attempt to show that such statements are judicial. They are like the statements of any one else, and a party trusts them at his peril. If they do not prove correct, then although the attorney may be surprised, yet he has no reason to complain. The opposing party is not to blame, and is entitled to have his cause heard when it is reached, regardless of what the judge said off the bench."

    Judicial judgments must have a finality. If they can be set aside because of some oral statement made by the judge off the bench unofficially, then there is no finality to them. They may be attacked and set aside years afterwards, as is being attempted here. Again, it would often happen that the opposing party would be helpless to meet the attack. Suppose the judge has died in the meantime? He cannot deny that the private conversation took place. It would frequently happen there could be no denial. As stated in the beginning the rule, in my opinion, is too dangerous.

    Sydney Smith, C.J., joins in this dissent.

Document Info

Docket Number: No. 36083.

Citation Numbers: 25 So. 2d 459, 199 Miss. 809

Judges: <bold>L.A. Smith, Sr., J.,</bold> delivered the opinion of the court.

Filed Date: 3/25/1946

Precedential Status: Precedential

Modified Date: 1/12/2023