Heath v. Halfhill

• Decision Date: 05 October 1898
• Citation: 76 N.W. 522,106 Iowa 131
• Parties: HEATH v. HALFHILL ET AL.
• Court: Iowa Supreme Court

106 Iowa 131

76 N.W. 522

HEATH

v.HALFHILL ET AL.

Supreme Court of Iowa.

Oct. 5, 1898.

Appeal from district court, Clayton county; A. N. Hobson, Judge.

Action to enjoin the enforcement of a judgment. From a decree in plaintiff's favor the defendants appeal. Modified.S. T. Richards, for appellants.

Newberry Bros. and J. E. Corlett, for appellee.

WATERMAN, J.

We may say in the beginning that the undisputed testimony shows that the plaintiff, Heath, was at the time of the proceedings complained of a resident of Delaware county. In July, 1896, the defendant Halfhill instituted an action against plaintiff for the recovery of money, before a justice of the peace in and for Clayton county. Defendant Ash is the justice before whom such action was brought, and the other defendant, Nichols, is the constable who executed certain process, of which more will be said later. The action proceeded to judgment. Execution was afterwards levied by garnishing one Ringer, and seizing a certain buggy belonging to plaintiff. The sum of $42 was collected under the Ringer garnishment, and the buggy, which the evidence shows was of the value of $75, was sold on execution. The relief asked in the case at bar is that the enforcement of said judgment be enjoined. The execution spoken of was levied after this action was begun, and the amounts recovered thereon were sufficient to satisfy the judgment. The district court, on finding in plaintiff's favor, rendered a decree restraining, in terms, the collection of the judgment, and also allowed a recovery for the amount that had been collected on execution. The action before the justice was based upon an open account. It is clear that he had no jurisdiction. Code 1873, § 3507; McMeans v. Cameron, 51 Iowa, 691, 49 N. W. 856;Boyer v. Moore, 42 Iowa, 544. Appellants seem to think this case is not governed by the authorities cited, for the reason, as they insist, the defendant in the action before the justice appeared and filed a counterclaim. In response to this it is enough for us to say that there is no evidence that any counterclaim was filed; and in the first of the cases we have just cited it is held that the justice does not acquire jurisdiction of a nonresident defendant, even though the latter appears, and goes to trial without objection.

2. Appellants insist that in no event can the justice and constable be held liable, under the testimony. The rule is that a justice of the peace is not liable for his judicial conduct, unless he acts corruptly. Gowing v. Gowgill, 12 Iowa, 495;Londegan v. Hammer, 30 Iowa, 508;Henke v. McCord, 55 Iowa, 378, 7 N. W. 623. There is no evidence of improper motive in this case. As to the constable, the law is that he is protected when acting under a writ, regular on its face. Henke v. McCord, supra. If the court has jurisdiction of the subject-matter (and it had in the case complained of), but has failed to get jurisdiction of the person, an execution regular on its face will protect the officer. Savacool v. Boughton, 5 Wend. 170;Howard v. Clark, 43 Mo. 344. Indeed, we think the point is ruled in favor of said officers by the case of Thompson v. Jackson, 93 Iowa, 376, 61 N. W. 1004, which, in its facts, is almost identical with the case at bar. An attempt, however, is made to distinguish the cases in two particulars. It is said, first, that the officers here had notice of plaintiff's claim of want of jurisdiction before they acted. We do not perceive that this affects the matter. If defendant had appeared in the justice court, and set up the want of jurisdiction, and the court in good faith had found against...