47 Iowa 681 | Iowa | 1878
In illustrating what-'might be considered a. determination of a judicial character in approving a bond the court referred to Howe v. Mason, 14 Iowa, 510, where a justice of the peace wrongfully decided that a married woman could bind herself as surety upon a bond, and accordingly accepted her. The case at bar involved a determination as to whether tire person offered as surety was pecuniarily responsible for a sufficient amount to secure the judgment which was to be stayed. It required simply the ascertainment of two facts, the amount which the person offered as surety was worth and the amount of the judgment. The ascertainment of neither fact involved the determination of a question of law, or a question of fact upon offered evidence. The ascertainment was to be made by the clerk in his own time and way. In our opinion it was not a judicial determination.
¥e have then to consider whether the clerk exercised reasonable care. The evidence shows that before he accepted the offered surety he was wTarned not to accept him by a person who claimed to have investigated his financial condition. Personally, it appears, the offered surety was not at the time he was offered much known to the clerk. lie had not at that time been living long in Johnson county. He had been living in Benton county. But it appears that in that county, which is near to Johnson county, he wras well enough known, and was notoriously insolvent. It seems certain that any reasonable inquiry by the clerk would have revealed to him the fact that the offered surety was insolvent. It is true he had in Benton
It is claimed by the appellants that at the time the judgment was rendered the judgment debtors were insolvent, and that, therefore, no damage has accrued to the plaintiff. The evidence of their solvency is not very satisfactory, but there is not, we think, such lack of evidence upon the point as to justify us in disturbing the judgment. It must, therefore, be
Ajteirmed.