Fowler v. Brooks

13 A. 417, 64 N.H. 423

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1887
• Status: Published

Opinion

Carpenter, J.

Durgin’s wife and the justice were second cousins. By the common law of this state, a judge related to either party within the fourth degree is not qualified to sit in the cause. Bean v. Quimby, 5 N. H. 94; Gear v. Smith, 9 N. H. 63 ; Sanborn v. Fellows, 22 N. H. 473; Moses v. Julian, 45 N. H. 52. The question whether he is disqualified by a more distant relationship (Sanborn v. Fellows, 22 N. H. 488) need not now be determined; because, assuming that the justice could not lawfully act in the case, the judgment was voidable only, and not void. Moses v. Julian, supra; Stearns v. Wright, 51 N. H. 600; Crowell v. Londonderry, 63 N. H. 49; Dimes v. Grand Junction Canal, 3 H. L. Ca. 759, 785, 790 ; Phillips v. Eyre, L. R. 6 Q. B. 1, 22. In the last named case the court say (p. 22), — “As a rule, the judgment of an interested judge is voidable, and liable to be set aside by prohibition, error, or appeal, as the case may be ; but it is not absolutely void, and persons acting under the authority of such a judgment, before it is set aside by competent authority, would not be liable to be treated as trespassers.” The plaintiff had a complete remedy by appeal. A judgment rendered in this state against a citizen of this state (Rangely v. Webster, 11 N. H. 299; Russell v. Perry, 14 N. H. 152; Eastman v. Dearborn, 63 N. H. 364; Carleton v. Bickford, 13 Gray 591; Finneran v. Leonard, 7 Allen 54; McCormick v. Fiske, 138 Mass. 379 ; Eliot v. McCormick, 144 Mass. 10; Coit v. Haven, 30 Conn. 190) by a court, or by any tribunal, for the revision of whose proceedings a direct process by appeal or otherwise is provided, cannot be collaterally impeached by a party except for want of jurisdiction of the subject-matter. Smith v. Knowlton, 11 N. H. 191; Morse v. Presby, 25 N. H. 299, 303 ; Gurnsey v. Edwards, 26 N. H. 224, 229; State v. Richmond, 26 N. H. 232; Nichols v. Smith, 26 N. H. 298, 300; State v. Canterbury, 28 N. H. 195, 224; Claggett v. Simes, 31 N. H. 56; Haywood v . Charlestown, 34 N. H. 23 ; State v. Rye, 35 N. H. 368; Gay v. Smith, 38 N. H. 171; Kimball v. Fisk, 39 N. H. 110 ; State v. Towle, 42 N. H. 540; State v. Shattuck, 45 N. H. 205, 211; Boody v. Watson, 64 N. H. 162, 184; Hendrick v. Whittemore, 105 Mass. 23; and the cases before cited. It is not now necessary to consider whether, consistently with this result, the decision in Davis v. Hazen, 61 N. H. 383, can be upheld.

Judgment for the defendant.

Allen, J., did not sit: the others concurred.