Keeler v. Stead

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 [506] whom the ease 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 : “Ro one shall act as justice of the peace in the trial of any civil action which shall have been brought, or in which the writ or declaration shall have been filled up by his partner, or by any one occupying the same office or apartment with him.” Acts of 1875, ch. 87, sec. 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in error claims that this statute was not in force when the suit before the justice was brought and tried, but had been repealed.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 necessary 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 of 1846, ch. 9,) and is to be found in the Revision of 1875, p. 60, sec. 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-láw,” and concluded by expressly repealing the act of 1846. Acts of 1882, ch. 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 the two acts of 1875 and 1882. Acts of 1887, ch. 50. The [507] defendant in error claims that it appears from this enactment that the legislature regarded the act of 1875 as having been before repealed. A sufficient explanation of this legislation is, that it was intended to embody in one statute the germane provisions of the two acts. The defendant says that the provision of the act of 1875 was not contained in the report of the revising committee to the legislature of 1887, and claims, as we understand him, that the legislature recognized the propriety of that omission in adopting their report. But the report was not to go into effect until after it had been revised and corrected. Before it had been referred back to the committee for that purpose, the act of 1887, to which we have just referred, was passed, not improbably to remedy the omission in the report of the committee. We conclude that the justice was disqualified to act in the case in question. This being so, the judgment rendered by him was void, unless the plaintiff in error in legal effect waived the disqualification. The defendant claims that he did so by proceeding to trial, presumably with knowledge of the disqualification of the justice, as he has not alleged or proved that he was ignorant of it. But as the justice was disqualified to act in the ease his action could have no legal validity or effect. Although it is a case of want of power to act, and not strictly one of want of jurisdiction, yet the result in both cases must be the same; the judgment must be void. And as in the case of want of jurisdiction there can be no waiver of the defect, and jurisdiction cannot be conferred even by the agreement of the parties, so here a waiver can have no effect, and an agreement of the parties could have none if it were not for a statute expressly providing for that mode of removing the disqualification. That statute provides that “ when any justice- of the peace shall be disqualified to act in any proceeding before him, he may act by consent of the parties in writing given thereto in court.” Gen. Statutes, § 676. This mode having been thus provided must be folio wed if [508] the parties desire to remove the disqualification; while a mere waiver of all objection to the disqualification, by the conduct of one of the parties, or in any other mode, can have no effect whatever. It is with regret that we feel ourselves compelled to come to this result. We should be glad to hold that the plaintiff in error is estopped by his conduct from claiming that the justice was disqualified to act. But in our view of the law we cannot give this effect to his conduct. The legislature alone can furnish a remedy for the evil, for such we regard it. The judgment of the Court of Common Pleas was erroneous and is reversed. In this opinion Park, C. J'., Pardee, and Loomis, Js., concurred. Carpenter, J., was of opinion that the acting of the justice under the disqualification was an irregularity that could be waived, and was not absolutely void; and that the conduct of the plaintiff in error in going to trial before him with knowledge of the disqualification was a waiver of objection to it, and that he was estopped from setting it up in the present case.