order—i. e., an order made after hearing both sides in court. Furthermore, it is clear to our minds that the mode and style adopted by a judge of the district court in appending his signature to an order disposing of what is essentially a court matter cannot, under our statutes, determine the character of the order made. To assent to the notion that a judge of the district court is permitted at his option to determine by the phraseology of an order, or by the style of his signature thereto, whether in deciding a matter he is exercising powers vested by the constitution in the district court, or whether he is acting in some other capacity not defined, would be to sanction a state of things closely resembling jugglery.
Referring to district courts, § 4828, Comp. Laws, declares: “These courts are always open for the purpose of hearing and determining all actions, special proceedings, motions, and applications of whatever kind or character, and whether of a civil or criminal nature arising under the laws of the territory, and of which the district courts have jurisdiction, original or appellate, except issues of fact in civil and criminal actions.” The statute further provides that all matters except the trial of issues of fact in actions may be heard and determined at any place in the same district where the matter is pending. This statute is plain and unambiguous. It declares that district courts are “always open,” except for the trial of issues of fact in actions. By this statute the distinction is abrogated which from ancient times has existed at law and in chancery between the powers of a court when sitting at a general or special term and those other and different powers which could be exercised out of court by a judge thereof when in his chambers. What could be done by a judge of a court of law or by the chancellor at chambers was perhaps fairly well settled by the practice at an early day in England; but in this country the powers of judges at chambers have been much modified and enlarged by legislation, and hence differ widely in the different states. To explore the authorities for the purpose of tracing the lines of demarkation separating the powers of.courts from those of judges out of court in other states would be of little or no practical value where, as with us, the line itself has been effaced by law. The reason why a judge,
