Page:North Dakota Reports (vol. 2).pdf/270

 out of term, sitting in his chambers, could not formerly exercise the power and authority of the court was simply because the court at such times was not open for the transaction of business. "Formerly there was and could be no court open except at a general or special term appointed to be held pursuant to law. But in this state the district court is “always open.” It is quite true, as well as somewhat confusing, that our statute does in a few instances in express terms confer powers upon the judges of the district courts which essentially belong to courts as such, and which under the old procedure, were exercised only by courts in term time. Section 4675, Comp. Laws, is an example of this class of statutes. Asa rule such statutes were ingrafted upon our laws from the older states, and were passed prior to the departure made in 1887, whereby it is declared by statute that the district courts are always open. The district courts being always open, it is of course entirely superfluous to confer upon the judges powers which they already possess as district courts. The court being open, it does not matter vitally whether an order of the court is embodied in the minutes or reduced to writing and filed with or without the words, “By the court,” if the thing done is in its nature an exercise of the powers of the district court. In all cases where the decision is made after notice and a hearing it is the court which acts, and not the judge. Nor can the form of the order or the style of the judge’s signature thereto determine the matter. 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, and must be so regarded. In such cases it is much better practice to cite parties before the court and not before the judge, as it is the court which acts. Yale vy. Edgerton, 11 Minn. 271 (Gil. 184); Rogers v. Greenwood, 14 Minn. 333 (Gil. 256); State v. McDonald, 26 Minn. 445, 4 N. W. Rep. 1107; McLane v. Granger, 74 Iowa 152, 37 N. W. Rep. 123. It is true, nevertheless, that under existing statutes, which were for the most part adopted prior to 1887, judges of the district courts are authorized to make, and are constantly making, certain orders wherein