IN COURT and IN CHAMBERS

The following is a rough compilation of law from older publications of late

1800’s and early 1900’s, published in various volumes of CORPUS JURIS,
an English encyclopedia of law. No attempt has been made to cite all the
old case law referenced in the encyclopedia. Only some have been cited as
referenced. Nonetheless, modern resources were also consulted, namely
THE FEDERAL COURTS LAW REVIEW, Volume 3, Issue 2, 2009, “Kudzu in
the Courthouse: Judgments Made in the Shade,” by Stephen Wm. Smith.
The last page of the study provides the compiler’s conclusion below of law
and current rendition of authority of a judge at chambers, which needs be
verified by the reader.

In court and in chambers.--"The case of a single judge sitting in court is included

under the term 'Court,' and 'judge' can only mean a judge sitting at chambers."
Salm Kyrburg v. Posnanki, 13 Q. B. D. 218, 222

The phrase "court or judge," as used in English rules of court has been construed to
mean the court sitting in banc, or a judge at chambers. Dallow v. Garrold 14 Q. B. D.
543; Clover v. Adams, 6 Q. B. D. 622; Baker v. Oakes, 2 Q. B. D. 171; In re B--,
[1892] 1 Ch. 459; Freason v. Loe, 26 Wkly. Rep. 138.

Where a commissioner has the powers of a judge at chambers a power granted by

statute to a judge at chambers is impliedly conferred on the commissioner 25
Judicial Decision

5 B Chamber Powers of Judge. In states where this officer exists [commissioner]

the several constitutions generally limit his powers to those of a judge at
chambers.22 In other words the constitution limits the power of the commissioner
as a subordinate officer of the court and as to pennding therein to such
proceedings, orders, or business as might be conducted before or made or attended
to by the judge at chambers.28 This power does not include the trial of a case on
merits but is among those which are exercised preliminary, intermediate or ex parte
matters involving the merits of a cause, i.e., powers which may be exercised by a
judge out of term acting as judge merely and not as a court.2 Where a
commissioner has the powers of a judge at chambers, a power granted by statute to
a judge at chambers is impliedly conferred on the commissioner.25

5 C Review or Belief from Judicial Decision. A court commissioner cannot

review or investigate the proceedings of a judicial tribunal for such a power involves
the exercise of a judicial power in the strict legal sense.27 Neither can he overrule
or rescind the action of a court or judge 28 nor transfer a case from one court of
record to another on the ground of prejudice of the judge of the former court.28 In
some jurisdictions a court commissioner may vacate a default judgment 80 but in
other jurisdictions the contrary rule obtains.31

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COURT IN BANC or COURT IN BANK. This phrase describes a meeting of all the
judges of a court usually for the purpose of hearing arguments on demurrers points
reserved motions for new trial, etc., as distinguished from sessions of the same
court presided over by a single judge or justice.29

Term Time and In Session. Term time is the time the Court is actually sitting and
in session and continues until final adjournment, either before or at the expiration of
the term. This is distinguished from special term, for the hearing of motions or
arguments or the dispatch of various kinds of formal business, or the trial of a
special list or class of cases. Or it may denote a sitting of the court in banc.

Special term is that branch of a court which is held by a single judge for hearing and
deciding in the first instance motions and cause of equitable nature and is called
the "special term," as opposed to the "general term," held by three judges to hear
appeals. General term denotes the ordinary session of a court, for the trial and
determination of causes, as distinguished from a special term, for the hearing of
motions and arguments.

A judge at chambers only has authority to grant an order out of Term. An order
made in Term will be void.

CHAMBER BUSINESS 70. A term applied to all such judicial business as may
properly be transacted by a judge at his chambers or elsewhere as distinguished
from such as must be done by the court in session 7; any hearing before a
judge which does not take place during a term of court or while the judge is sitting
in court or an order issued under such circumstances, all business done out of
court by the judge. 75 The act may be an official one and hearing may be in the
court room but if the court is not in session it is still said to be done in chambers.7

Origin of the practice. Formerly in England there were four terms of court in each
year and their duration was so fixed that there were only ninety-one days in each
year during which the courts could be in session. As the judicial business increased
it became impossible to transact it all within these periods of time and there grew
up the practice of hearing many matters out of court with the same effect as if
heard while the court was in session but the matters which were thus heard were
only such as pertained to causes pending in court and which were of a
nature to expedite or facilitate the judicial disposition of the pending
cause to which they were merely subsidiary or collateral. At a later day the
practice arose of hearing and disposing of such matters at certain hours term time
while the court was not in formal session and subsequently certain hours of each
day were fixed at which one of the judges would hear these matters while the was
actually In session. The decisions and orders thus made were said to be heard and
disposed of at chambers for the reason that they were heard by the judge at his
chambers rather than in the court room but the term chambers finally became
extended so as to Include any place either in or out of the court room at

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which a judge may hear applications or make orders while the court is not
in session in matters pending in that court. The distinction between those
matters which could be heard in court and those which could be heard at chambers
arose from convenience rather than from any other cause but they were limited to
the subsidiary and incidental steps in practice and procedure leaving to the court
the Judicial determination of the issues presented by the pleadings and which
formed a part of the record. Von Schmidt v Widber, 99 Cal 511, 512; 34 P 109 Cal
511, 512; 34 P 109

In Reference To Jurisdiction. 11 All business done out of court by the judge is

called chamber business but it is not necessary to be done in what is usually called
chambers. Chamber business may be done and often is done on the street in the
judge's own house at the hotel where he stops when absent from home or It may be
done In transitu on the cars in going from one place to another within the proper
jurisdiction to hold court. For the purposes of jurisdiction the chambers of the Judge
are wherever he happens to be in his circuit or district when the exigencies of the
case call for the transaction of chamber business and a judge is as clearly engaged
in the discharge of the duties of his office when going from one place of holding
court to another for the purpose of holding court and Just as much entitled to
protection from his own government against murderous or other assaults from
desperate suitors on account of his judicial action as when actually engaged In
business at chambers or in holding court. In re Neagle, 39 Fed. 833, 855; 5 LRA 78 2

Expressions such as in the judge's chambers, at his chambers and the like have
sometimes been construed in the light of general provisions of statutes or
constitutions in which they occurred and the legislative or constitutional intent has
been the main point to be arrived at rather than the exact meaning of the
expression at chambers taken alone as characteristic of a certain kind of procedure
which is often denoted today as in Camera, such being an in Camera hearing in the
back office of the judge.

Generally in some state jurisdictions, the question as to whether a proceeding was

at chambers or was a part of the exercise of the jurisdiction of the court as such has
arisen in cases where the action complained of took place in vacation. But it cannot
declared as matter of law that everything which a judge does between the opening
of his session of court and its close is essentially a court procedure rather than one
at chambers. In some counties the terms of court last for several months at a time.
While the term is still continuing the judge may pass orders in the exercise of his
powers at chambers The distinction between the two kinds of acts on the part of the
judge is not limited to the mere question of whether they are done between the
general commencement of a term of court and its close or in vacation.

Court and its close or in vacation. To illustrate during the pendency of a term of
court a judge may have an application made to him for the appointment of a
temporary receiver or the granting of a temporary restraining order. These things
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he may act upon but they are not inherently a part of the procedure of the court in
term time. Under his powers as chancellor he might grant such orders in vacation as
well as in term time. He need not have granted them in open court or even in
connection with the proceedings of the then pending term of court. It not
infrequently happens that while a judge is holding a term of court In one county of
his circuit, applications for temporary injunctions, restraining orders, the
appointment of receivers and the like in other counties are presented to him and
acted upon by him. But such action does not become a part of the proceedings of
the court then pending.

Of court pending. They are at chambers although granted while court in one
county is actually going on. Morehead v Allen , 131 Ga 807, 814 63 SE 507 3. The
chambers of a Judge are not an element of Jurisdiction but of convenience. For the
purposes of Jurisdiction the chambers of a Judge are wherever he is found within his
district and any business he is authorized to do as a judge in vacation is
chamber business. Hoskins v Baxter, 64 Minn 226, 229; 66 NW 969.

4 Jurisdiction at chambers is incidental to and grows out of the jurisdiction of the

court itself. It is the power to hear and determine out of court such questions
arising between the parties to a controversy as might well be determined by the
court itself but which the legislature has seen fit to intrust to the Judgment of a
single judge out of court without requiring them to be brought before the court in
actual session. It follows that the Jurisdiction of a judge at chambers not go beyond
the Jurisdiction of court to which he belongs or extend to matters with which he has
nothing to do. And the constitution in granting such jurisdiction at chambers to the
judges of the courts of the state, as may be directed by law, is to be understood
limiting the jurisdiction of each such subject matters as are the jurisdiction of his
proper court and to which it is ex vi termini limited. Pittsburg etc R Co v Hurd, 17 Oh
St 144 146. See At 5 CJ p 1430 text and note 54 Judges 23 Cyc 505, 543, 559

c Judge at chambers 1. Mr Anderson in his Dictionary of Law at page 163 in

defining the meaning to be attached in the law to the words judge at chambers says
it means a Judge acting out of court. Appleby v South Carolina etc., R. Co., 58
SC 33 35 36 SE 109 per Pope J dis op 2. When a Judge decides some interlocutory
matter which has arisen in the course of the cause out of court he is said to make
such decision at his chambers. Bouvier, LD., quot Pitts burg etc R Co v Hurd, 17 Oh
St 144, 146. See also Com v McLaughlin, 122 Mass 449, holding that an allegation in
an indictment that a motion was heard by a justice at his chambers was satisfied by
proof that the hearing took place in an apartment appropriated to the use of that
court for the transaction of business not requiring the presence of a jury. Travelers
Ins. Co v Weber, 2 ND 239, 244, 245, 50 NW 703, holding that where by virtue of
the statute, district courts are clothed with authority to hear and determine court
cases out of term an order in such cases made after a hearing brought on by notice
of motion or order to show cause before the judge at chambers is an order of the
district court, the court further saying in speaking of orders at chambers. This class
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of orders is quite similar in character and practically the same orders which under
the old system of procedure were made by judges out of court and were known as
chambers orders. This class of orders is usually made with little deliberation and ex
parte and is intended to be preliminary only. Familiar examples of this class of
orders are the orders to publish the summons in actions about to be commenced,
orders of arrest in arrest and bail proceedings, injunctional orders made ex parte,
orders appointing receivers ex parte... also orders parte staying proceedings, orders
to show cause, orders enlarging time to plead and the like. To same effect Chicago
etc R Co v St Clair, 144 Ind 371, 42 NE 225 Lamotte v Smith, 50 SC 558, 27 SE 933,
Salinas v Aultman 49 SC 378, 27 SE 407, Frawley v Cosgrove, 83 Wis 441, 445, 53
NW 689, holding that the phrase Includes a county judge or court commissioner.
Whereatt v Ellis, 65 Wis 639, 27 NW 630, 28 NW 333, 72 Bouvier LD quot Kirby v
Chicago etc R Co, 51 Colo 82, 86 116 P 150, 73 In re Neagle 39 Fed 833, 855, 5 LRA
78 74, Bouvier LD rquot Kirby v Chicago etc R Co 51 Colo 82 86 116 P 150.

CHAMBERS 79 The private room of a judge 80 the private room or office of a judge
where for the convenience of parties he hears such matters and transacts such
business as a judge in vacation is authorized to hear and which do not
require a hearing by the judge sitting as a court 81, the office or private
rooms of a judge where parties are heard and orders made in matters not requiring
to be brought before the full court and where costs are taxed, judgments signed
and similar business transacted 82 rooms in which the judges sit to transact
business which does not require to be done in court or can be less
conveniently disposed of there 83.

In international law. Portions of the sea cut off by lines drawn from one
promontory to another or included within lines extending from the point of one cape
to the next situated on the seacoast of the same nation and which are claimed by
that nation as asylums for merchant vessels and exempt from the operations of
belligerents 84 parts of the ocean included within lines drawn from promontory to
promontory or perhaps from points a league distant from each 8.

4 4 A In General 16. A court commissioner has such powers and such only as are
conferred on him by constitution or statute 17. Such powers cannot be enlarged by
consent of the parties 18 nor can the court confer upon a commissioner powers not
given him by law. 1 However the legislature has authority to give to court
commissioners powers in addition to those specifically enumerated in the
constitution 20 subject to the restriction that such powers shall be connected with
the administration of justice 21 5

B Chamber Powers of Judge. In states where this officer exists the several
constitutions generally limit his powers to those of a judge in chambers.22 In other
words the constitutional provisions limit the power of the commissioner as a

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subordinate officer of the court and as to causes pending therein to such
proceedings, orders or business as might be conducted before or made or attended
to by the judge at chambers.28 Such power does not include the trial of a case on
its merits but is among those which are exercised in preliminary intermediate or ex
parte matters not involving the merits of a cause powers which may be exercised
by a judge out of term acting as a judge merely and not as a court 2 Where a
commissioner has the powers of a judge at chambers a power granted by statute to
a judge at chambers is impliedly conferred on the commissioner 25.

C Review or Relief from Judicial Decision. A court commissioner cannot review

or investigate the proceedings of a judicial tribunal for such a power involves the
exercise of a judicial power in the strict legal sense.27 Neither can he overrule or
rescind the action of a court or judge 28 nor transfer a case from one court of
record to another on the ground of prejudice of the judge of the former court 28 In
some jurisdictions a court commissioner may vacate a default judgment 80 but in
other jurisdictions the contrary rule obtains 31 J 7

D Trying Title to Land. A court commissioner cannot try the title to land either
under a statute conferring on him directly the power of adjudicating tax titles 32 or
in the exercise of his rightful power to entertain summary proceedings to recover
the possession of land wrongfully detained by tenants 33 and when the question of
title arises by the proofs offered it is his duty to dismiss 1 But the jurisdiction of the
commissioner is not ousted by a plea of title in defendant or by the mere fact that
defendant asserts that the instrument under which plaintiff claims is void as a
matter of law. It is only where the question of title is necessarily involved that the
jurisdiction is ousted.35 Also the commissioner may determine questions relating
simply to the possession of real property 30 and under a statute expressly
authorizing summary proceedings to recover possession when any person shall
continue in possession of any premises sold by virtue of a mortgage or execution
after the expiration of the time limited by law for redemption the commissioner has
power to try the fact of the mortgage or execution sale and its validity 37 8

E Powers of Court in Vacation. The powers of a court in vacation38 cannot be

exercised by a court commissioner where such powers are greater than those
possessed by a judge in chambers 38

The words judge and court are frequently used as convertible terms 35 but they are
not strictly synonymous 86 and a judge alone does not necessarily constitute a
court 37 for while the judge is an indispensable part 38 he is only a part of the
court.

8 Constituent Parts of a Court. In every court there must be at least three

constituent parts, the actor reus and judex; the actor or plaintiff who complains of
an injury done, the reus or defendant who is called upon to make satisfaction for it
and the judex or judicial power which is to examine the truth of the fact to

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determine the law arising upon that fact and if any injury appears to be done to
ascertain and by its officers to apply the remedy. 40

An order made by the judge at chambers in a case requiring action by the

court has been held to be invalid.

CONCLUSION AS TO CURRENT ALLOWANCES OF POWERS OF JUDGE AT

CHAMBERS. The requirement that valid judgments be rendered in open court
endured well into the twentieth century. In 1912, one state court laid down the
general rule in words which might have been taken straight from Lord Coke’s
mouth: The law is well settled in this state . . . that, unless expressly authorized by
statute, a judgment or decree, to be valid, must be rendered in open court during
term time; that, without such sanction, a judgment or decree rendered in vacation
or at chambers is null and void. This is the general rule in this country, and has
been adopted by the appellate courts in most, if not all, of the states of the Union.
Scott v. Stutheit, 121 P. 151, 154 (Colo. App. 1912); see also Ex parte Gay, 20 La.
Ann. 176, 177 (1868) (“The judgment rendered by the Judge in chambers is null and
void.”); Hickman v. Williams, 8 Tenn. (Mart. & Yer.) 116, 117 (1827) (stating that
security for stay of execution of judgment could only be given in open court).

The advent of systematic reporting of court decisions as well as modern recording

technology, eventually led to a relaxation of this strict requirement. As adopted in
1937, the Federal Rules of Civil Procedure provided that any judicial act or
proceeding could be done in chambers, except for trial on the merits, which had to
be conducted in open court. FED R. CIV. P. 77(b).

Referees, Commissioners or Special Masters. In some jurisdictions a referee

may be called a special master, court commissioner, or a magistrate. The Federal
Rules of Civil Procedure, for example, allow for the appointment of a "master," who
can be a referee, an auditor, an examiner, or an assessor. Generally, however, the
duties of a master are the same as those of a referee, and the appointing judge
may limit the master's powers to report only on specified issues or to perform only
particular acts. The federal judiciary also uses magistrate-judges—“judicial
officers” who perform a broad range of delegated or statutory duties,
such as presiding over initial hearings in criminal cases, misdemeanor
trials, pretrial proceedings, and the trial of civil cases. The Federal
Magistrate Act of 1968 (Pub. L. No. 90-578, 82 Stat. 1107 [codified at 28
U.S.C.A. §§ 604, 631–639]) created the current system of federal
magistrate judges and governs the duties of such magistrates. A
magistrate, master or commissioner does not have the authority or power
of contempt or to render judgment.

The U.S. district courts do not have formal terms, but rather the times for
holding regular sessions are determined by local rules of the respective
courts. See 28 USCS sections 2, 138, 139. NOTE: Sec. 2 is for the U.S.

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Supreme Court; Sec. 138 abolishes formal terms in the federal district
courts; Sec. 139 provides the regular sessions of the U. S. district courts
shall be continuous on all business days throughout the year -- until
terminated by order of final adjournment or by commencement of the next
regular session.

Please note that decisions and orders in chambers, prior to this statutory
change of term time, were only valid when court when the courts were not
in session, i.e., in vacation time. No alteration in that condition precedent
with respect to orders made with regard to orders made when court is in
term time or vacation time appears to have been made under statute.

THEREFORE, it would appear that any order made in chambers in term

time or regular session of a pending case, even today under modern
statutory requirements, is null and void as was the case prior to 1937.
Such orders may impact the validity of judgments rendered on such cases.
THIS POSSIBILITY NEEDS INTENSIVE RESEARCH.

Courts of Record are Defined by Common Law.

A "court of record" is a judicial tribunal having attributes and exercising

functions independently of the person of the magistrate designated
generally to hold it, and proceeding according to the course of common
law, its acts and proceedings being enrolled for a perpetual memorial.
Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8
Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y.
406, 155 N.E. 688, 689.

From the beginning, American court proceedings were conducted on the

record, and that very record has long been regarded as a badge of
legitimacy. The Supreme Court in the nineteenth century summarized the
traditional bond between court and court record: “The well-settled maxim
that a court of record can act only through its orders made of record,
when applied to judicial proceedings, means that where the court must
itself act, and act directly, that action must always be evidenced by the
record.” Bullitt County v. Washer, 130 U.S. 142, 149 (1889).

The necessity of proceeding in open court on the record extended to

presentation of grand jury indictments. In Commonwealth v. Cawood, the
General Court of Virginia carefully explained that an indictment has no
effect unless “the foreman of the Grand Jury endorses on it, ‘a true bill,’
and signs his name as foreman, and then the Bill is brought into Court by
the whole Grand Jury, and in open Court it is publicly delivered to the
Clerk, who records the fact.” Commonwealth v. Cawood, 2 Va. Cas. 527,
541 (Va. Gen. Ct. 1826) (emphasis added).

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In other words, an accusation of crime, no less than a conviction, was
sanctioned by law only when done in open court, where proceedings were
regularly recorded by a sworn officer. Off the record conduct, by its very
nature, lacked “the solemnity required by Law,” Id. at 541, and so was
insufficient proof of indictment. Any relaxation of this strict requirement,
even by statute is believed to be unconstitutional. Words and phrases
found utilized in fundamental law, i.e., the constitution, which is a
common law document, when legislative enactment draw upon the same
words, the respective legislatures are bound by the incidents of such
fundamental law. An incident is defined as, “having a subordinate or
dependent relation to something specified.” See "Incident," in Merriam-
Webster's Dictionary of Law. Source: Merriam-Webster, Inc.;
http://dictionary.reference.com/browse/Incident. When the U.S.
Constitution adopts a term from the common law, it adopts, also, the law
regulating its incidents and properties, unless repugnant to that
instrument. Anderson v. Dunn, 19 U.S. 204 (1821). The Constitution, by
permission or prohibition of an act, renders it void, if done; otherwise, the
constitutional permission or prohibition were nugatory. 4 Bl. Com. 491.
Lawmakers only have powers to make law in pursuance of the
Constitution. Laws not so made are void, ab initio, because Congress has
no authority to adopt new definitions inconsistent with the words and
phrases understood at the time of the adoption of the constitution.

“Congress cannot by any definition it may adopt [to define “income”]

conclude the matter, since it [Congress] cannot by legislation alter the
Constitution, from which alone it derives its power to legislate, and within
whose limitations alone that power can be lawfully exercised.” Supeme
Court: Eisner v. Macomber, 252 U.S. 189 (1920)