The Hawkeye Ins. Co. v. Brainard

• Decision Date: 22 June 1887
• Citation: 33 N.W. 603,72 Iowa 130
• Parties: THE HAWKEYE INS. Co. v. BRAINARD ET AL
• Court: Iowa Supreme Court

33 N.W. 603

72 Iowa 130

THE HAWKEYE INS. Co. v. BRAINARD ET AL

Supreme Court of Iowa, Des Moines

June 22, 1887

Appeal from Polk Circuit Court.

ACTION IN EQUITY. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

AFFIRMED.

Phillips & Day, for appellant.

Parsons & Perry, for appellees.

OPINION

SEEVERS, J.

T.

H Napier was an acting justice of the peace in and for Polk county, Iowa, and he entered into an agreement with the plaintiff as follows:

"This memorandum witnesseth that in any and all suits commenced by the Hawkeye Insurance Company of Des Moines, Iowa, before me as a justice of the peace, or in my said justice's court no fees or charges as costs shall be required to be paid by said company until collected by them of the defendants; nor unless it collects or receives the same of the defendants or opposite parties in such suits. If the judgments rendered in any of such suits, or any costs, fees or charges are not ever collected of the parties opposed to such company, the defendants therein, no costs or fees are to be charged or collected from said company by me; it being the understanding and basis of this contract that, where the judgments or claims in such suits are not collected by said company, that then, in such suits, I am to lose my costs and charges therein without any charge or claim therefor against said company. It is further understood that the said company have the privilege of issuing notices for the commencement of suits before me; and where the parties pay the claim before the return day named in the said notices that the said company may relinquish to such parties any and all fees and costs for issuing such notices, and I am to make no charges therefor against such party or the company; it being understood that it is only in such suits as the notice is actually returned into my court, and before me personally, that any charge is to be made by me in any suit commenced for costs or otherwise. The company is expected to furnish their own blanks for notices. This contract is not transferable.

"Dated at Des Moines this January 21, 1879.

"T. H. NAPIER."

The plaintiff, in pursuance of said agreement, caused to be commenced before said Napier certain suits on premium notes given it, in which certain fees were lawfully taxed as due to said Napier as a justice of the peace. The defendants, being about to enforce the payment of said fees, the plaintiff commenced this action, and asked and obtained an injunction restraining the collection of said fees, upon the ground that, under the contract above set out, the same were not collectible of the plaintiff. There was a demurrer to the petition upon several grounds, among which are that "said contract is absolutely null and void as against public policy and the statutes of Iowa." The demurrer was sustained.

I. There is no controversy as to the amount of the fees due Napier under the statutes of this state, which prescribe the fees and compensation for all official services performed by him. A justice of the peace is a public officer, whose emoluments are fixed and prescribed by law for all acts done by him by virtue of his office, and it is conceded by counsel for the appellant, as we understand, that the agreement deprives the justice of certain fees which but for it he could compel the plaintiff to pay; and it is said, as such fees belonged to him, he could collect or remit...