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64 N.H. 423

13 A 417

Fowler v. Brooks

Supreme Court of New Hampshire

Decided December 5, 1887

Supreme Court of New Hampshire · decided 1887-12-05

Replevin, for a carriage and harness. One Durgin brought an action against the plaintiff before a justice of the peace whose father was a cousin of the father of Durgin’s wife. Fowler appeared and filed with the justice a written objection to his jurisdiction, on the ground of bis relationship to Durgin. The justice overruled the objection, and .rendered judgment in favor of Durgin, from which no appeal was taken.

Relies on Boody v. Watson · Moses v. Julian · State v. Richmond

Good law ✅— No negative treatment on recordhow we know

Decided 1887-12-05

How this case has been cited

Cited by 25 later decisions (1 by the Supreme Court) — most recently September 1953 · most notably McClaughry v. Deming (1902), State ex rel. Cook v. Houser (1904)

24 state decisions

10018871890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Carpenter, J.

¶1 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 *425 consider whether, consistently with this result, the decision in Davis v. Hazen, 61 N. H. 383, can be upheld.

¶2 Judgment for the defendant.

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