Clerk of court

“ It was addressed, not to an officer of the court or a counsel in the case, but to a stranger. The clerk, by merely filing such a document, does not adjudicate that it is in fact that which on its face it purports to be. ”

“ The offices of clerk and sheriff were never designed to be mere names, nor to be engines and pretexts, to be used at the will of any one. By what authority, then, could the appellant assume the functions of both clerk and sheriff ”

“ A distinction, however, is claimed between the case of a clerk, who is strictly a subordinate officer of the court, and a commissioner, who, it is said, is a separate judicial officer over whom the court has no control. ”

“ The deputy clerk of this court, for example, is very efficient and faithful, and, if there should be a vacancy in the office of clerk of the court, it is not only possible, but very probable, that he would be appointed to fill the vacancy, thereby obtaining a much larger salary then he now receives ”

“ To ascribe to them an intention to restrict the duties of a clerk pro tempore to the session of the court, would be imputing to them an act of utterly useless legislation; since none can fail to perceive, on looking into the law, that the duties of the clerk of probate are as extensive and as important, during vacation, as they are during term-time ”

“ It is no part of the duty of the clerk to note in his entries the exceptions taken, or to note any other proceedings of counsel, except as they are preliminary to, or the basis of, the orders of judgment of the court. To be of any avail, exceptions must not only be drawn up so as to present distinctly the ruling of the court upon the points raised, but they must be signed and sealed by the presiding judge. ”

“ A second son, who was not a deputy, was temporarily in charge of the clerk's office, with instructions, given by the deputy, to receive and file papers, and, if it became necessary, to sign and issue process. Acting upon these instructions, the brother signed and issued the writ in question, doing so in such manner that it purported to have been signed and issued by the deputy on behalf of the clerk. ”

“ By the 8th section of the statute, the legislature declared, that in case the clerk of probate 'shall be at any time unable, from sickness or other unavoidable causes, to attend said court, it shall be lawful for the judge of probate to appoint a person to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office,' &c. ”

“ Every district attorney, clerk of a district court, clerk of circuit court, and marshal, shall, on the first days of January and July, in each year, or within thirty days thereafter, make to the attorney general, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. ”

“ An item for attendance on the circuit court at Macon by deputy for several days was disallowed by the comptroller, upon the ground that the clerk had been allowed a per diem for his personal attendance upon the court at Savannah upon the same day, the comptroller holding that the clerk was entitled to but one per diem for any one day, although the court might be in session at two or more places, and the clerk be represented at one of those places by a deputy. ”

“ Looking, however, through form to the essence of things, as no mere independent action of the clerk as clerk is involved, but the authority exe ted by the court in directing the action of the clerk complained of is the subject-matter at issue and is the only justification relied upon by the clerk in the answer to the rule, we are of the opinion that in the exercise of a sound discretion we may treat the case from that point of view, that is to say, under the circumstances consider the authority to have made the order with the clerk alone as a technical party to the proceeding. ”

“ It would be sufficient, for instance, if the attorney left it on the marshal's desk or other place in the marshal's office, so that the marshal would understand that it was left with him for service. It would be equally sufficient if the attorney, or the clerk acting by his direction, placed the summons in a box in the clerk's office, designated by the marshal, with the clerk's assent, as a place where processes to be served by him should be deposited, and from which he usually took them daily. ”

“ As the clerk is not a jury commissioner eo nomine, it is difficult to see how he could be paid out of an appropriation for jury commissioners, or how these appropriation bills enlarge his rights, and, unless he is entitled to extra compensation as clerk for these duties, there would seem to be no appropriation from which he could be paid. While the duties of the clerk are similar to those of the commissioner, there is nothing in the language to indicate that the clerk did not act as clerk in performing such duties, or that he became ex officio a jury commissioner. ”

“ From this position, claimed by counsel as a legitimate deduction from the statute, it is argued, that the clerk, having been appointed by an exercise of power wholly illegal and void, nay, even without color of authority, his acts, too, must be merely void, and not entitled to the effects properly attributable to the acts of one who may be considered as an officer de facto, in contradistinction to him whose commission and qualification are in all respects regular, and who therefore may be called an officer de jure and de facto. ”

“ Said the court: 'There is ample power in a court which has been regularly convened to adjourn to a futurn time, provided it be not beyond the term; but in the absence of a statute authorizing it, the clerk or other ministerial officer cannot act for the judge in either opening or adjourning court. The clerk is a ministerial officer, and, without statutory authority, can exercise no judicial function. The opening, holding, and adjournment of court are the exercise of judicial power to be performed by the court. ”

“ When the clerk in an English Court of Justice administers the usual oath, he finishes with the words “Kiss the Book,” spoken in an imperative mood, and if the witness shows any hesitation in carrying out the unsavoury ceremony, he does his best to compel performance. The imperative mood of the clerk has not, to my thinking, any legal sanction. Kissing the Book is not, and never has been, as far as I can learn, a necessary legal incident of the oath of a Christian witness or juror. ”

“ The great man knows that the jurors are aware of the importance of the occasion and that their eyes will follow his every movement. As he walks up to the counsel table and deposits his derby it may well become a gage of battle.
The clerk at the side of the judge's desk begins turning a large hollow wooden wheel; within it are cards on each of which is written the name of a juror who has been served by the sheriff to attend on the panel for the trial term of the court. The number summoned naturally is larger than the twelve needed for any one case. ”

“ Under such circumstances, when the law provides expressly for the appointment of a deputy, and authorizes the clerk to pay his compensation as a part of his office expenses, there can be no question that his acts as such deputy should be recognized as the acts of the clerk himself, and that the clerk is entitled to like fees for the performance of such acts. ”

“ When the clerk performs a service in obedience to an order of the court, he is as much entitled to compensation as if he were able to put his finger upon a particular clause of a statute authorizing compensation for such services. ”

“ The conflict between the interest of the court clerk in the timely filing of papers and the interest of the citizen in having his lawsuit tried should be resolved in favor of the citizen, not the court clerk. ”

“ At the judge's right are the jury, seated in a box of either two rows of six or three rows of four, the back row being nearly on a level with the judge. In front of the judge, but so much lower as to oblige him to stand on his chair when whispering to his lordship, sits his "associate," a barrister in wig and gown, whom we should designate as the clerk of the court.
Facing the associate is the "solicitors' well," at the floor level, where, on the front row of benches, sit the solicitors in ordinary street dress. ”

“ And the district court refusing to command the clerk to comply with the request, mandamus proceedings were commenced in the circuit court of appeals for the first circuit to compel the clerk to comply. ”

“ The clerk of the court, the deputy clerk, the crier, the marshal of the United States and his deputy, who were in attendance on the court, all corroborate, on oath, the statement of the judge, and say no application was made in open court for the appeal; and no entry on the docket is found of such an application. From the certified copy of the petition for an appeal, it does not appear to have been filed, or that an entry of it was made on the docket. ”

“ It is elementary that, where the ground of attachment may be alleged in the language of the statute, the authority to allow the writ need not be exercised by the judge of the court, but may be delegated by the legislature to an official, such as the clerk of the court. ”

“ It is a piece of information for the clerk upon which he acts in computing the amount due the witnesses for mileage and attendance, and when this is done the discharge is functus officio. It has accomplished all that it was ever required to do, is not needed as a voucher, and no advantage is gained by cumbering the files of the court with it. ”

“ So the attorney for the plaintiff proceeds throughout the twelve before him, and he may say at any time, "Your Honor, I excuse juror number so and so."
Usually he examines the whole twelve before "excusing" any of them, and when doing so many lawyers turn from the box to the judge as they say, "I will excuse numbers four, five, and eleven." Frequently those remaining do not realize why their brethren have been dismissed. A slight bewilderment may pass across the faces of all, as a man here and there, under the beckoning finger of the clerk, rises to give up his seat. ”

“ Art. 1230. 'Where the defendant is absent from the state, or is a nonresident of the state, the clerk shall, upon the application of any party to the suit, his agent or attorney, address a notice to the defendant requiring him to appear and answer the plaintiff's petition at the time and place of holding of the court, naming such time and place. ”

“ It is unnecessary to decide whether, when the district consists of two divisions, and courts are held in both divisions by the same judge and officers, they are one court or two. It is sufficient for the purpose of this case to hold that the sessions are separate, and that the clerk is entitled to charge for his own attendance at one place, and for that of his deputy at another. ”

“ A judge may sit for one term in the equity court, then in the criminal branch, and next in a court en banc. All the time there is only one office of record, one clerk of the court, with as many deputies as may be found necessary. ”

“ Now, while, as before stated, if the court be properly opened, no business need be done to entitle the officers to their attendance fees, and when authority to do so is given by statute the clerk or marshal may open the court and adjourn it, we know of no authority under which a clerk may open court at his own will, when he may have some order to enter; nor do we know of any authority under which even a judge may open court without his personal presence, unless specially authorized to do so by statute. ”

“ Moreover, by the agreed statement of facts it appears that a deputy clerk, who became ex officio recorder, was appointed June 30, 1906, and opened his office for the transaction of business at Duncan on July 7, 1906. ”

“ A clerk shall be appointed by the district judges of said district, who shall reside at Utica, and attend said court at the places aforesaid, and do all the duties of said office of clerk, which may accrue at or from the sessions of the court at said places, both in and out of court, and be allowed the same fees and compensation as by law is allowed to clerks of the district courts. ”

“ The practice in most districts allows the witness or juror to appear before the clerk, make oath to his mileage and attendance, and receive a ticket or memorandum of the amount due him, which he presents to the marshal, who takes his receipt upon a large roll opened for the signature of all such jurors and witnesses as are paid off during the term. One order is then made to pay all persons whose names are on the roll, and the expense of a separate order in each case is thereby avoided. ”

“ But in the case at bar the certificate not only begins with setting out the name and office of the clerk as the maker of the certificate, but has appended to it the seal of the court, and lacks only the clerk's signature to make it conform to the best precedents. ”

“ As many other people are coming in, and the room threatens soon to be crowded, a considerate attendant, knowing that we are in favour with the grave and reverend seigniors who preside over the Court, shows us into another and smaller room, where one of the deputy Clerks (Greffier) is seated working at his books. One by one other persons come in, pay small sums of money, of which the deputy Clerk evidently keeps an exact account, together with the names and addresses of the payers, the amounts yet remaining due--everything, in fact, relating to each person's case. ”