La Fromboise v. Porter

246 N.W. 193, 261 Mich. 483, 1933 Mich. LEXIS 792

• Court: Michigan Supreme Court
• Decided: January 3, 1933
• Docket: Docket No. 186, Calendar No. 36,854.
• Status: Published

Opinions

With the modification that costs cannot be taxed against either party, 1 Comp. Laws 1929, § 3540, I think the decree should be affirmed.

The remaining question is whether an affidavit of publication of a tax petition, taken before the publisher of the newspaper in which the petition was published, he acting as notary public, is void for his interest; the publisher not being a party to the tax proceeding.

Counsel conceded that if the notary was disqualified for interest, the court acquired no jurisdiction to enter the tax decree.

The nature of the interest which will disqualify a notary depends upon circumstances and does not rest in general rule of law. 46 C. J. p. 518; 2 C. J. p. 329; 20 R. C. L. p. 334; John's American Notaries (3d Ed.), §§ 21, 99. An important consideration is whether he would take direct benefit from his act. The courts will not search for indirect and remote benefits to work disqualification, especially where the rights of third parties intervene. Havemeyer v. Dahn, 48 Neb. 536 (67 N.W. 489, 58 Am. St. Rep. 706, 33 L.R.A. 332, and note); Cook v. Foster, 96 Mich. 610.

It has been said that in taking and certifying an acknowledgment a notary performs a quasi-judicial act, while in administering an oath he does a ministerial act. John's American Notaries (3d Ed.), § 99; Bowden v. Parrish, 86 Va. 67 (9 S.E. 616, 19 Am. St. Rep. 873); Horbach v. Tyrrell,48 Neb. 514 (67 N.W. 485, 37 L.R.A. 434). The analogy of notaries public to judicial officers, drawn by courts in considering disqualification, does not apply to their ministerial acts. When not disqualified by statute and not a party to the suit, a judicial officer may perform ministerial acts in a proceeding in which he has an interest. McFarlane v. Clark, 39 Mich. 44 (33 Am. Rep. 346); 33 C. J. p. 1022.

The claim here is that the affidavit of publication was part of the operation by which the notary could collect his fees for publication. 1 Comp. Laws 1929, § 3458, provides:

"Any person familiar with the facts may make an affidavit as to the publication required. The auditor general shall not pay for any such publication until satisfied that it has been made according to law."

The affidavit of publication could be connected with payment of publishing fees only in case the auditor general should make it the evidence upon which he would pay. The record does not show such requirement. Nor are we now prepared to hold that such departmental regulation, if it existed, could affect the validity of court procedure and the integrity of decrees.

McDONALD, C.J., and CLARK, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred with FEAD, J.