Clark & Grant v. Lyon County

| Iowa | Dec 15, 1873

Day, J.

It is the duty of the district attorney to appear for any county in his district, in all matters in which it may be a party or interested, in the district court of his district. Rev., § 374. A.willful neglect of this duty would be a misdemeanor, and render him liable to indictment, fine and imprisonment. Rev., §§ 4301, 4303.

The duty thus positively enjoined upon the district attorney must, of necessity, be accompanied with the right to do the thing required. If it is a positive duty, resting upon the district attorney to appear in the district court for the respective counties in his district, it is just as much a duty for the board of supervisors and the court to permit him to appear when he desires to do so. And a refusal to allow him to appear denies him a legal right. Nor is his right to appear any the less a legal right because no specific compensation is allowed for this duty. A party would have the right to be admitted to an office, and to discharge its duties, although the service was purely voluntary. As an example, a sub-director of a school district receives no compensation. Tet, if, being duly elected, he should be denied admission to the office, there can be no doubt that in the appropriate action he might have relief. It seems then clear that a legal right of the appellant has been invaded. A wrong has been done.

The question here is, what remedy does the law afford? The appellate jurisdiction of this court, it seems to us, reaches the case, and may apply the appropriate remedy. The supreme court has an appellate jurisdiction over all judgments and decisions of any of the district courts. Rev., § 2631. Here, although no judgment, in the legal acceptation of that term, was rendered, yet there was a decision affecting a legal right. The exercise of a substantial right was demanded, and by the decision of the court was denied. To prevent a failure of justice there must be a review of the decision, and it can be had only by appeal. We do not hold, that if the district attorney had been allowed to appear and defend in the court below, and had been unsuccessful, he could, of his own motion, and against the wishes, and in opposition to the judgment of the board of supervisors, appeal the cause to this court and protract the litigation.

This question does not now arise. The law gives the district attorney the right to appear in the district court on behalf of the counties of his district, and when he thus appears he must exercise his own judgment as to the proper mode of conducting the defense.

We conclude, therefore, that the district attorney had the right to file an answer; that the court erred in denying him the exercise of the right, and that the cause must be reversed and remanded, with direction to allow him to appear and defend.

Reversed.