Smith v. Frisbie

7 Iowa 486

• Court: Supreme Court of Iowa
• Decided: April 4, 1859
• Status: Published

Opinion

"Woodward, J.

The case of Michales v. Hine, 3 G. Greene, 470, holds, that “ whenever it appears from tho record, that the duties which belong to the court conducting the trial of a cause, have been attempted to be exercised by any person other than a judge, an error is at once disclosed sufficient to reverse, although the case may be free from en’or in other respects.” And in Winchester v. Ayres, 4 G. Greene, 104, it is held that even the consent of parties, will not confer the power; and this case holds section 1797 of the Code to be unconstitutional, in attempting to give this authority.

Without saying whether we could fully concur in this latter doctrine, it is apparent that such substitution cannot be made against the objection of either party, and that if this appear, it is a fatal objection. It is not made to appear clearly at what stage of the case the objection was filed, or first made in any manner, but this is immaterial. At most, they were but entering upon the trial, the plaintiff having offered but one piece of evidence. That a person who was not a judge under the laws of the state, was placed upon the bench to try the cause, against the wishes of one of the parties, is made manifest; therefore, the proceedings, and the judgment under them, must be reversed.

It is to be hoped that no one, holding the responsible office of judge, would refuse a party a bill of exceptions to show his objection ; and we regret to see the necessity of resorting to a bill signed by third persons, where the facts do not appear to be questioned.

Judgment reversed and cause remanded.