Chase v. Weston

• Decision Date: 08 September 1888
• Parties: CHASE v. WESTON, SHERIFF.
• Court: Iowa Supreme Court

75 Iowa 159

39 N.W. 246

CHASE

v.WESTON, SHERIFF.

Supreme Court of Iowa.

September 8, 1888.

Appeal from district court, Hamilton county; D. D. MIRACLE, Judge.

Action in equity by D. C. Chase against C. F. Weston, sheriff, to restrain the sale of real estate in satisfaction of a judgment alleged to be void. The petition was filed December 22, 1885, and a temporary writ of injunction was issued to restrain the sale. On the 18th day of February, 1886, an answer was filed, which denied the alleged invalidity of the judgment in question. On the 8th day of September, 1887, the defendant filed a notice to the effect that the cause would be brought on for trial at the term of court which commenced on the 19th day of that month. On the 7th day of October, 1887, when the case was reached for trial in its order, the plaintiff moved that it be set down for trial on depositions and documentary evidence, but the motion was overruled. On the same day plaintiff filed a motion for a continuance to the next term of court, which commenced on the 21st day of November, 1887, supported by his own affidavit. This was overruled. Plaintiff then filed a motion for a change of place of trial, on the ground that the judge of the court was prejudiced against him, supported by the affidavits of three disinterested persons. Counter-affidavits were filed, and the motion was overruled. Plaintiff was then ordered to proceed to trial at once. The case was tried to the court, and judgment rendered in favor of defendant. The plaintiff appeals.Chase & Chase, for appellant.

Kamrar & Boeye, for appellee.

ROBINSON, J., ( after stating the facts as above.)

1. Appellant insists that the district court did not have jurisdiction to try this cause, against his objection, on account of the relationship of the judge of the court to plaintiff. He assigns errors, and does not ask a trial here de novo. It is shown by the affidavit in support of the application for a continuance, and is admitted by appellee, that the judge was the uncle of plaintiff. Section 190 of the Code is as follows: “A judge or justice is disqualified from acting as such, except by mutual consent of parties, in any case wherein he is a party, or interested, or where he is related to either party by consanguinity or affinity, within the fourth degree, or where he has been attorney for either party in the action or proceeding. But this section does not prevent them from disposing of any preliminary matter not affecting the merits of the case.” Degrees of consanguinity and affinity are to be computed according to the rule of the civil law. Code, § 45, (24.) By that rule the judge was related to the plaintiff in the third decree. 2 Bl. Comm. 207; 2 Kent, Comm. 412. He was therefore within the prohibition of the statute. It is claimed by appellee that section 190 of the Code was not called to the attention of the district court, and it seems to be his thought that if the application for a continuance and for a change of forum were insufficient, under the statutes relating to such applications, that plaintiff waived the question of jurisdiction by failing to base his objections explicitly upon section 190. It may be conceded that the applications of plaintiff were not sufficient, under the statutes relating to continuances and changes of forum, and we are inclined to the opinion that section 190 escaped the attention of the trial judge. But we do not think that fact affects in any manner the rights of appellant. The district judge was disqualified from sitting on the trial of the case in the first instance, and the disqualification could be removed only by the mutual consent of parties. Stress is laid upon the...