Keeler v. Stead

• Decision Date: 02 June 1888
• Citation: 56 Conn. 501,16 A. 552
• Parties: KEELER v. STEAD.
• Court: Connecticut Supreme Court

16 A. 552

56 Conn. 501

KEELER

v. STEAD.¹

Supreme Court of Errors of Connecticut.

June 2, 1888.

Appeal from court of common pleas, Fairfield county.

Writ of error from a judgment of a justice of the peace. The complaint-alleged disqualification of the justice, and defendant in error demurred on the ground that the complaint showed no error in the judgment, and that the disqualification had been waived. The demurrer was sustained, and plaintiff in error appealed.

J. B. Hurlbutt, for appellant. J. A. Gray, for appellee.

BEARDSLEY, J. This is a writ of error from the judgment of a justice of the peace, appealed to this court from the court of common pleas. The plaintiff alleges in his complaint that the defendant in error on the 6th day of October, 1886, recovered judgment against him in a civil action tried before a justice of the peace, and that such judgment is erroneous because the plaintiff's attorney, who filled up and signed the writ in the action, then occupied the same office with the justice who rendered the judgment. The record of the proceedings before the justice is made a part of the complaint, by which it appears that the parties proceeded to trial before the justice; the defendant, now plaintiff in error, making no claim that the justice was disqualified to try and decide the cause. The defendant in error demurred to the complaint, and the court rendered judgment sustaining the demurrer.

It is admitted that the magistrate who filled up and signed the writ occupied the same office with the justice before whom the case was tried. Was the justice thereby disqualified? and, if so, did the defendant, now plaintiff in error, waive the disqualification, in legal effect, by proceeding to trial before him? These are the questions in the case. The plaintiff in error claims that the justice was disqualified by the following statute: "No one shall act as a justice of the peace in the trial of any civil action which shall have been brought by, or in which the writ or declaration shall have been filled up by, his partner, or by any person occupying the same office or apartments with him." Acts 1875, c. 37, § 1. The "defendant in error claims that this statute was not in force when the suit before the justice was brought and tried, but had been repealed. To understand this claim it is necessaay to refer to an earlier statute, which provided that "no judge or justice of the peace shall act as such in any civil action in which he or his partner, clerk, or student shall have drawn or filled up the writ or declaration, nor in any criminal matter." This act was passed in 1846, (Acts 1846, c. 9,) and is to be found in the Revision of 1875, p. 60, § 4. An act passed in 1882 re-enacted the provisions of this statute, and added to the words, "partner, clerk, or student," contained in it, the further words, "son, father, brother, father-in-law, brother-in-law, and son-in-law," and concluded by expressly repealing the act of 1846. Acts 1882, c. 16. The defendant in error claims that it also impliedly repealed the statute of 1875 upon which the plaintiff in error relies. The act of 1875 specifies a distinct ground of disqualification, applying to civil actions only. There is no appearance of inconsistency between it and the act of 1882, nor do we discover any foundation for the claim that the act of 1882 was intended as a revision of the whole subject to which it relates, and a substitute for all the acts concerning it. The fact that the legislature, while repealing the earlier statute to which we have referred, did not repeal the act of 1875, shows that they designed that it should remain in force. In 1887 an act was passed containing the provisions of...