Polk Cnty. v. Cope

• Decision Date: 10 April 1916
• Docket Number: No. 30322.,30322.
• Citation: 176 Iowa 19,157 N.W. 245
• Parties: POLK COUNTY v. COPE ET AL.
• Court: Iowa Supreme Court

176 Iowa 19

157 N.W. 245

POLK COUNTY

v.COPE ET AL.

No. 30322.

Supreme Court of Iowa.

April 10, 1916.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action at law for the recovery of certain fees collected by the defendant as a justice of the peace of Polk county and not paid over or accounted for as provided by law. Judgment for plaintiff, and defendants appeal. Affirmed.Parsons & Mills, of Des Moines, for appellants.

George A. Wilson, Co. Atty., of Des Moines, for appellee.

WEAVER, J.

From January 1, 1909, to January 1, 1911, the defendant Cope was a duly elected and acting justice of the peace in Des Moines township, Polk county, Iowa. His codefendants in this action are sureties upon his official bond. This action was brought by the county August 28, 1912, alleging that during Cope's said term of office he collected as fees of that office taxed in civil cases brought in his court, the aggregate sum of $2,834.75, no part of which had by him been paid over or accounted for to the county, though demand therefor had been made. It was further alleged that before the suit was brought the board of supervisors of Polk county acting under the authority vested in them by the statute duly passed a resolution allowing the said Cope $500 per year for the expenses of his office for the period of said term, and after allowing him the credit of $1,000 to which he thus became entitled there was left due and owing by him from the plaintiff for the fees so collected the sum of $1,834.75 and interest, for which judgment was demanded. Later and during the pendency of this action the board of supervisors attempted to rescind the resolution making such allowance for expenses, and thereupon plaintiff amended its petition and withdrew the credit therein acknowledged and demanded judgment for recovery of the entire amount of defendant's collections. The defendants answered the petition admitting the election of Cope as justice of the peace, his giving of the bond sued upon and his service in that office for the time mentioned. He also admitted the allowance to him of $500 per year for the expenses of his office and denied all other allegations not admitted, and denied the validity of the action of the board of supervisors in attempting to revoke the allowance made for expenses. There was a further plea of the statute of limitations, which appears to have been abandoned, and we shall not further notice it.

The issues were submitted to the court without a jury upon an agreed statement of facts. The stipulation concedes substantially every allegation of the petition, except the validity of the attempt of the board to rescind the allowance of office expenses; and as the trial court held with the defendants upon this proposition and gave them credit therefor in computing the amount of indebtedness and as plaintiff has not appealed therefrom, we may also pass this issue without further consideration. It is further conceded that Cope made proper report of the fees of his office in criminal cases and paid the proper amount over to the county treasurer, but that he made no report of the fees of his office in civil cases until April 1, 1912, at which time he reported to the board that the actual and reasonable expenses of his office for the term of two years were $2,402.76. The amount of fees which he collected and still retains is admitted to be as stated in the petition. There is no plea or suggestion in the answer alleging the invalidity of the law fixing the compensation of justices of the peace, nor any affirmative allegation of fact on which Cope bases any legal right or authority to retain the fees which he admits he has collected. The trial court entered judgment for plaintiff for the full amount of plaintiff's claim after giving credit thereon for the sum of $1,000 as provided by the original resolution of the board of supervisors. From this judgment the defendants appeal.

The statute governing the compensation of justices of the peace so far as applicable to this case is as follows:

Code Supp. 4600a: “Justices of the peace and constables in townships having a population of twenty thousand shall pay into the county treasury all criminal fees collected in each year. Justices of the peace and constables in townships having a population of under twenty thousand shall pay into the county treasury all fees collected each year in excess of the following sums: * * * In townships having a population of twenty thousand or more, justices of the peace and constables shall receive in full compensation for their services performed in criminal cases during the year, the following sums which shall be paid quarterly out of the county treasury; in townships having a population of twenty-eight thousand or more, justices, fifteen hundred dollars; constables, twelve hundred dollars; in townships having a population of twenty thousand and under twenty eight [thousand], justices, twelve...