Hass v. Leverton
| Citation | 128 Iowa 79,102 N.W. 811 |
| Parties | HASS v. LEVERTON. |
| Decision Date | 13 March 1905 |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hardin County; W. D. Evans, Judge.
Action to enjoin and cancel a judgment entered on a transcript of a justice of the peace. Decree as prayed. The defendant appeals. Reversed.N. S. Carpenter, for appellant.
F. H. Noble, for appellee.
A judgment was entered against the plaintiff in the justice court of Harry Luiken, Esq., November 10, 1898, and a transcript thereof was certified by the judgment plaintiff, as Squire Luiken's successor in office, and filed with the clerk of the district court, who made the appropriate entries essential to render it in all respects a judgment of that court. Appellant contends that, because of being the judgment plaintiff, the justice was disqualified from certifying to the transcript. Doing this, however, was a purely ministerial act, in no way connected with the trial, and subsequent to the entry of the judgment. Houghton v. Swarthout, 1 Denio (N. Y.) 589. He merely copied the judgment, and certified that the copy was correct. This called for the exercise of neither judgment nor discretion, but was in pursuance of a legal requirement of a transcript as a basis of a judgment entry in the district court. See Throop on Public Officers, § 734. Neither the common law nor the statute disqualifies a judicial officer, because of being a party or related to a party, from performing purely ministerial duties in no way connected with the trial. State v. Collins, 5 Wis. 339;Cullins v. Overton, 7 Okl. 470, 54 Pac. 702; Hayes v. Collier, 47 Ala. 726; State v. Gurney, 17 Neb. 523, 23 N. W. 524; 17 Am. & Eng. Ency. Law (2d Ed.) 744. See Moses v. Julian, 84 Am. Dec. 114, and note. In Johnson v. Jeffries, 30 Mo. 423, the court held that issuing of an execution by a justice was a judicial act, but seems to have based its conclusions on the question of expediency, rather than the character of the act. In Dawson v. Dawson, 29 Mo. App. 521, the disqualification of a judge was held to extend to entering judgment in pursuance of a mandate of the Supreme Court, contrary to the holdings of the cases first cited. But here the act of the officer had no connection with the trial or entry of judgment, save that the purpose of making the transcript was that it might be filed with the clerk of the district court. Under section 284 of the Code, a justice is disqualified from acting as such, except by mutual consent of the parties, in any case wherein he is a party, but not from disposing of any preliminary matter not affecting the merits of the case. This has reference to the case until its conclusion by the entry of judgment, and not to purely ministerial acts performed in pursuance of statute subsequent thereto.
2. The service of the original notice was by leaving a copy with the defendant's wife--the return so designating her--and exception is taken thereto because she was not specifically named. The statute required that the return shall state “the name of the person with whom the same was left or a sufficient reason for omitting to do so.” Section 3519, Code. As the wife bears the name of the husband, her name was indicated with sufficient definiteness, without repetition of his, with “Mrs.” before it. Davis v. Burt, 7 Iowa, 56. Aside from this, no issue is raised by the pleadings with respect to the sufficiency of the return.
3. It is next urged that as the plaintiff's wife was 67 years old, and unable to understand, read, or write the English language, this, with the fact that the notice did not reach plainti...
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