Fowler v. Brooks

• Decision Date: 16 March 1888
• Citation: 64 N.H. 423,13 A. 417
• Parties: FOWLER v. BROOKS.
• Court: New Hampshire Supreme Court

13 A. 417

64 N.H. 423

FOWLER

v. BROOKS.¹

Supreme Court of New Hampshire. Carroll.

March 16, 1888.

Replevin for a carriage and harness. One Durgin brought an action against the plaintiff before a justice of the peace whose father was a cousin of the father of Durgin's wife. Fowler appeared, and filed with the justice a written objection to his jurisdiction on the ground of his relationship to Durgin. The justice overruled the objection, and rendered judgment in favor of Durgin, from which no appeal was taken. An execution was issued upon the judgment, by virtue of which a deputy-sheriff took the chattels in question, then the property of the plaintiff, and sold them regularly at public auction to the defendant. The plaintiff claims to recover on the ground that the judgment, and all proceedings under it, were void.

J. H. Hobbs, for plaintiff. J. B. Nash, for defendant.

CARPENTER, J. Durgin's wife and the justice were second cousins. By the common law of this state a judge related to either party within the fourth degree is not qualified to sit in the cause. Bean v. Quimby, 5 N. H. 94; dear v. Smith, 9 N. H. 68; Sanborn v. Fellows, 22 N. H. 473; Moses v. Julian, 45 N. H. 52. The question whether he is disqualified by a more distant relationship (Sanborn v. Fellows, 22 N. H. 488,) need not now be determined, because, assuming that the justice could not lawfully act in the case, the judgment was voidable only, and not void. Moses v. Julian, supra; Stearns v. Wright, 51 N. H. 600; Crowell v. Londonderry, 63 N. H. 49; Dimes v. Canal, 3 H. L. Cas. 759, 785, 790; Phillips v. Byre, L. R. 6 Q. B. 1-22. In the last-named case the court say, (p. 22:) "As a rule the judgment of an interested judge is voidable, and liable to be set aside by prohibition, error, or appeal, as the case may be; but it is not absolutely void, and persons acting under the authority of such a judgment before it is sot aside by competent authority would not be liable to be treated as trespassers." The plaintiff had a complete remedy by appeal. A judgment rendered in this state against a citizen of this state, (Rangely v. Webster, 11 N. H. 299; Russell v. Perry, 14 N. H. 152; Eastman v. Dearborn, 63 N. II. 364; Carleton v. Bickford, 13 Gray, 591; Finneran v. Leonard, 7 Allen, 54; MeCormick v. Fiske, 138 Mass. 379; Eliot v. McCormick, 144 Mass. 10, 10 N. E. Rep. 705; Coit v. Haven, 30 Conn. 190,) by a court or any other tribunal for the revision of whose proceedings a direct process by appeal or otherwise is provided, cannot be collaterally impeached by a party except for want of jurisdiction of the subject-matter. Smith v. Knowlton, 11 N. H. 191; Morse v. Presby, 25 N. H. 299, 303; Gurnsey v. Edwards, 26 N. H. 224, 229; State v. Richmond, Id. 232; Nichols v. Smith, Id. 298, 300; State v. Canterbury, 28 N. H. 195,224; Claggett v. Simes, 31 N. H. 56; Haywood v. Charlestown, 34 N. H. 23; State v. Rye, 35 N. H. 368; Gay v. Smith, 38 N. H. 171; Kimball v. Fisk, 39 N. H. 110; State v. Towle, 42 N. H. 540; State v. Shattuck, 45 N. H. 205, 211; Boody v. Watson, 64 N. H. 162, 184, 9 Atl. Rep. 794; Hendrick v. Whittemore, 105 Mass. 23; and the cases before cited. It is not necessary to consider whether, consistently with this result, the decision in Davis v. Hazen, 61 N. H. 383, can be applied. Judgment for the defendant.

ALLEN, J., did not sit. The others concurred.

1 Reported by W. S. Ladd, official reporter of New Hampshire supreme court.