Havird v. County Commissioners of Boise County

• Decision Date: 28 February 1890
• Parties: HAVIRD v. COUNTY COMMISSIONERS OF BOISE COUNTY
• Court: Idaho Supreme Court

24 P. 542

2 Idaho 687

HAVIRD v. COUNTY COMMISSIONERS OF BOISE COUNTY

Supreme Court of Idaho

February 28, 1890

MANDAMUS-IRREGULARITY OF RECORD-RES ADJUDICATA-FRAUD-ACT UNCONSTITUTIONAL-FEES-SALARY-OFFICER DE FACTO-OFFICER DE JURE.

MANDAMUS-IRREGULARITY OF RECORD.-At the January term, 1889, in a suit between the parties interested in this proceeding, the court rendered a decision that the act under which the case was tried was unconstitutional and void, and reversed the court below afterward amending the record and dismissing the action. The next day two of the justices ordered the record amended by restoring the word "reversed" for "dismissed" (the latter amendment alleged to have been made out of term time); remittitur was sent to court below as cause being reversed by court. Held, that the remittitur should have been to dismiss the case, and not being so, Havird had no speedy and adequate remedy at law and mandamus was the proper proceeding.

RES ADJUDICATA-FRAUD.-In answer to Havird's application for a writ of mandate, the intervener, Gorman, avers the action is still pending in the district court, and this court is without authority to issue the writ. Held, that the greater portion of the declarations in the answer are res adjudicata and will not be considered by the court. Held, further, that a judicial record cannot be contradicted by parol evidence although it is elementary that no instrument, record or document is valid or can exist in the face of fraud, corruption or dishonesty, but in this proceeding the applicant is not in a position to assail the record.

FEES-SALARY-DE FACTO OFFICER-DE JURE OFFICER.-But for the fact that the statute (Rev. Stats., sec. 380) preserves the salary for the de jure officer, and forbids the issuance of a warrant pending the suit, the de facto officer would be entitled to both the salary and fees of the office, and if declared to belong to another, would be required to pay the same to the one found entitled, but even then the de facto officer would be entitled to his necessary expenses incurred in earning the fees and emoluments received.

Action dismissed, and writ of mandate issued.

Huston & Gray, for C. C. Havird.

George Ainslie, for John Gorman.

H. W. Dunton, for Boise County.

No briefs filed.

SWEET J. Beatty, C. J., and Berry, J., concurring.

OPINION

SWEET, J.

Cary C. Havird was a candidate for sheriff at the regular election in Boise county held in November, 1886. He was declared elected to said office by the canvassing board of said county, and in due time received a certificate accordingly. Within the time prescribed by law, John Gorman, the opposing candidate for sheriff at said election, commenced a proceeding under an act of the territorial legislative assembly approved January 30, 1885, in which he contested the right and title of said Havird to said office. The cause was heard by the district judge in and for said county, as by said act provided, and a judgment was rendered in favor of the applicant herein. John Gorman, the intervener in this action, moved for a new trial, which motion was by said judge overruled; and from the order overruling said motion said Gorman appealed to the supreme court of the territory. The cause came on for hearing before said court at its January, 1889, term, and on the eleventh day of March, 1889, the opinion of the court was rendered by Mr. Justice Berry; the court, by said opinion, declaring the act under which the trial before the judge in said Boise county was held to be unconstitutional and void, and by reason thereof caused to be entered in the records of this court an order reversing the judgment rendered by the judge of said district. On the eighteenth day of the same month the judgment of the court as rendered on the eleventh was amended on motion of counsel for the respondent, and, by this amended judgment, it was ordered that the action be dismissed; the substance of said order being that the word "dismissed" was substituted for the word "reversed." On the following day an entry appears in the record setting forth that Chief Justice Weir and Justice Logan, two of the members of said court, having reconsidered the action of the court as entered of March 18th, ordered that the motion to amend the original entry of March 11th be denied, and that the word "reversed" should stand as the judgment of the court in place of the word "dismissed."

The matter comes up at this time on an application by Cary C. Havird for a writ of mandate commanding the county commissioners of said Boise county to order the issuing of warrants, payable to the order of said Havird, as compensation for services rendered as aforesaid, in the form of salary, and for fees and expenses allowed by law. The commissioners answer the order to show cause by stating that the title to the office is involved in an action now pending in the district court in and for that county, and that, under section 380 of the statute, the said board is prohibited from ordering any warrants drawn in payment of salary during the pendency of an action over the title of the office. John Gorman, the intervener avers that the action is still pending in the court below, and that, while such action is pending, he is an interested party, and invokes section 380 of the statute to show that this court is without authority to issue said writ. The allegations contained in the pleadings cover a much wider range of investigation. Indeed, under the complaint and answer, it might be possible to try the entire case, as it is averred on the one hand that one party was elected, and, on the other hand, the election of the first party is denied, and the election of the second party averred. A greater portion of these declarations pro and con are res adjudicata, and will not be considered by this court. The only question here presented is the status of the case after the decision rendered by the supreme court at its last session.

What purports to be the record of the court, particularly the entry of March 19, 1889, is not regular upon its face, and in terms states that the action therein taken is the result of a conclusion reached by two of the members of the court; but it is not declared to be the action of the court by the court, and, from its very appearance, would perhaps suggest that any person interested would be justified in seeking to investigate its character. The intervener, as well as the board of county commissioners, in answering plaintiff's application in the matter now at bar, rely upon the entry made on March 19th, and upon the remittitur sent down by the clerk of this court to the court below, as justifying the position taken by them, which is that the action over the title to said office is still pending in said Boise county. Unquestionably the remittitur so states. It is before us; and, although the entry of March 19th does not declare that the conclusion therein mentioned was reached by the court, the remittitur was to the effect that such was the order, not of two of the justices, but of the court. Counsel for plaintiff offer to show that the entry of March 19th is not a record of this court. They contend that that entry was made out of term time, after the court had adjourned, upon the order, not of the court, but of two of its individual members. If this statement were true, it would not only not be a record, but it would be a false entry in a record, and must result in very serious consequences to those who made it.

The plaintiff introduced those entries in the record appearing as of March 11th and March 18th, and there rested. When the intervener and defendant offer to introduce the entry of March 19th, plaintiff objects, and offers to prove by parol evidence the irregularities above set forth. Defendant and intervener contend that the record of the court is conclusive, and that it cannot be assailed, and numerous authorities are cited in support of the proposition. On general principles, this court will not question the doctrine. It is a fact, however, that no instrument is sacred if in any manner tainted with fraud. A judicial record cannot be assailed, but this is a different proposition from denying the existence or validity of a record. In other words, the record, once established, is unassailable, and, as the honest record of the court, is absolutely unquestionable. In Lowry v. McMillan, 8 Pa. 157, 49 Am. Dec. 503, the court uses this language: "A record is entitled to great sanctity in the law, but then it must be an honest record. It is in vain to talk of the danger of altering or explaining a record by parol. Everything imbued with fraud must give way before credible sworn testimony." Note 5, page 170, of Bigelow on Fraud, reiterates this doctrine, and there distinctly states that the question of fraud may be raised so long as it was not a question involved in the trial of the cause; in other words, if it in any manner tampered with the rights of the parties, the jurisdiction of the court, or the correctness of the proceeding, at such time or in such manner as that the interested party was not able to be heard to protect himself. The general principle, therefore, is that a judicial record cannot be contradicted by parol evidence. It is an equally well-known, indeed an elementary, principle, that no instrument, no record, no document, is valid, or can exist, in the face of fraud, corruption or dishonesty. But, in the matter at bar, is the applicant in position to assail the record? We think not. Without attempting to specify how such a record may be assailed, and in what form the allegations should be made to admit of the introduction of parol evidence to...