Buck v. Hawley

• Decision Date: 17 January 1906
• Citation: 105 N.W. 688,129 Iowa 406
• Court: Iowa Supreme Court
• Parties: BUCK v. HAWLEY & HOOPS ET AL.

129 Iowa 406

105 N.W. 688

BUCK

v.HAWLEY & HOOPS ET AL.

Supreme Court of Iowa.

Jan. 17, 1906.

Appeal from District Court, Linn County; J. H. Preston, Judge.

Action to enjoin the collection of and cancel a judgment. Decree as prayed, from which defendants appeal. Affirmed.Crissman & Sargent, for appellants.

John N. Hughes, for appellee.

LADD, J.

Judgment was entered in the circuit court of Linn county January 6, 1885, for $225.33 and costs, in favor of Hawley & Hoops, on an account against Buck & Keech, R. N. Buck, and Philo E. Keech. Execution was not issued until May 11, 1903, and was then levied upon a city lot belonging to Buck. In this suit he asks that the collection of the judgment be enjoined, and it be canceled on the ground that the court was without jurisdiction to render it. Buck and Keech each testify positively that no notice was ever served on him, and to circumstances from which payment of the account to an attorney might be inferred. But the attorney is as positive that payment was not made to him, and the judgment entry recites that “the said defendants, though duly served with process and here solemnly called, came not, but made default,” and among the files was found an original notice, with a return of service and statement of fees indorsed thereon, signed, “B. F. Seaton, Sheriff, by John W. Shapley, Deputy.” This was shown to be in Shapley's handwriting, but appellee contends that he was not then a deputy sheriff. Section 766 of the Code of 1873 authorized the sheriff to appoint a deputy, such appointment to be in writing and approved by the board of supervisors, and required to be “filed and kept” in the office of the county auditor. The records of the board of supervisors were shown not to contain an approval of Shapley's appointment, nor was any trace of the record of a bond found in the bond record, and an attorney testified, without objection, to having examined the files of the county auditor's office, and that neither his appointment nor the approval or bond was there or in the sheriff's office. This was all the evidence bearing upon the issue as to whether Shapley was deputy sheriff, and we think it enough, standing alone, to prove that he was not such officer. The law required the board of supervisors to keep a “minute book,” in which shall be recorded by the county auditor all orders and decisions made by it, except in relation to highways. Sections 442, 470, Code 1897. The approval of the appointment of a person as deputy sheriff was an order of the board such as here contemplated, and the fact that no record of the approval of Shapley's appointment is to be found in the “minute book” and no written appointment of him on file in the auditor's office, where the law required it to be kept, is, to say the least, prima facie evidence that the appointment and approval never occurred.

Can it be said that he was a deputy sheriff de facto? In some cases color of office--that is, an appointment or an election of some kind--has been thought indispensable to the finding that a person is an officer de facto, and without which he is to be regarded as an intruder or usurper. State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Throop on Public Officers, § 623. But the current of authority is to the effect that an intruder or usurper may exercise official functions under such circumstances and for so long a time without interference as to justify belief that he has been elected or appointed. Wilcox v. Smith, 5 Wend. 231, 21 Am. Dec. 213; Cary v. State, 76 Ala. 78; Petersilea v. Stone, 119 Mass. 465, 20 Am. Rep. 335; People v. Staton, 73 N. C. 546, 21 Am. Rep. 479; Mallett v. Uncle Sam Gold, etc., Co., 1 Nev. 188, 90 Am. Dec. 484; State v. Murphy, 32 Fla. 138, 13 South. 705;State v. Punkerman, 63 Conn. 176, 28 Atl. 110, 22 L. R. A. 653;Van Amringe v. Taylor, 108 N. C. 196, 12 S. E. 1005, 12 L. R. A. 202, 23 Am. St. Rep. 51;Cox v. Houston, etc., R. Co., 68 Tex. 226, 4 S. W. 455;Lambert v. People, 76 N. Y. 220, 32 Am. Rep. 293; 8 Am. & Eng. of Law (2d Ed.) 78; Herkimer v. Keeler, 109 Iowa, 680, 81 N. W. 178. The theory of the doctrine of officers de facto and the principles sustaining the validity of their acts are that, though wrongfully in office, justice and necessity require that their acts, done within the scope of official authority and duty, be sustained, to the end that the rights and interests of third persons be protected and preserved. If Shapley can be said to have been an officer de facto, this must be owing to the exercise of official functions alone, for the only information contained in the record that he...