Moore v. Parker

25 Iowa 355 | Iowa | 1868

Oole, J.

i. ebaud ; in atively estab- • nshea. We do not stop to notice the numerous points made by the appellants, for the reason that, upon the merits of the case, as presented, we must this judgment. The object of this . . J J . action is to set aside as fraudulent the judgment of the District Court rendered in the Alderson case, the first mandamus proceedings, by virtue of which the recanvass, declaring Eldora the county seat, was made. But for that judgment, the plaintiffs might, for aught that appears, have had a complete remedy by their mandamus against the county judge to remove the offices, etc. The gist of this action is to procure a judicial declaration that that judgment is void. It was held by this court, in The State ex rel. Van Houton v. The County Judge of Hardin County, 13 Iowa, 139, that the . judgment was not void on its face and proceedings, and the court say, per Baldwin, Oh. J"., “ that, without determining whether the court erred in issuing the writ of mandamus in the Alderson case, that is, whether there was such a state of facts shown as to justify the interposition, of the court, or whether the relator and the canvassers colluded together for the purpose of disfranchising the voters of a portion of the county, or whether the return to the writ was made in bad faith by said board or otherwise, it is sufficient to say that the court had the power to compel the board to recanvass, and its order to this- effect is not a nullity. It cannot, therefore, be claimed that the issuance of the writ in the Alderson •’case, the return of the canvassers, and the judgment of the court thereon, is void. It is a matter over which the court could take jurisdiction. It is the judgment of a court of general jurisdiction, and as long as such judgment stands unreversed it is binding, and can not be attacked in a collateral proceeding.”

The judgment and proceedings in the Alderson case were all before the court in the case quoted from, and were in that case claimed by counsel to be void; and the judg ment therein may well be held to be a judicial determi nation that the proceedings and judgment themselves do not authorize the conclusion that they are void for fraud, want of jurisdiction, or other thing. This action was, therefore, brought to set the same aside for fraud aliunde but the proof fails to show the fraud. Indeed, upon the subject of fraud there is not a word of proof, unless it bé the bare facts that all the parties lived in Eldora, and a part of them owned property there. These facts might show a motive to fraud, but they do not show fraud,— cer tainly not sufficient to justify the setting aside of a solemn judgment of a court of general jurisdiction. Fraud is alleged in the petition; it is denied specifically and fully in the answer; the answer is verified by two of the defendants; the burden of its proof was upon plaintiffs, and in the proof thereof they have failed. That is the end of their case.

2. judgment: o??frauIeness It is true the counsel for plaintiffs has argued with unusual acumen and ability, that from the proceedings themselves it is apparent there was a fraudnlent combination and purpose. But this proposition was decided against in the case quoted from, stpra; and the learned district judge who tried this cause does not find that fraud has been proved, or even approximated; but he finds, “ that the second canvass and rejection of the vote and return from Pleasant township, was without legal authority, and that the certificate issued on such recanvass or second canvass, was improper and wrong, and must be set aside and declared null and void.” The District Court which adjudicated the case, decided that it “ had legal authority ” to and did make the order or judgment; this court has, at least once, decided that the District Court “had legal authority” to make the order, and because it “ had legal authority ” to so order and adjudge, this action was brought to set it aside. It is hardly competent, therefore, for the District Court to hold otherwise.

The proof shows that the judges and clerks of the election in Pleasant township were residents, and some of them property holders there, and, therefore, interested in the returns made by them; it also shows that after the poll-book was sealed up and delivered to one ,of the judges of the election, to be carried to the county judge’s office, and on the day after the election, it was broken open, and certain alterations made — one or more leaves cut out, and one, at least, inserted. But tbe proof fails to sbow tbat such alterations changed the result. If we were to indulge in the same latitude of presumption of fraud, from the bare proof of motive and opportunity for it, as urged by counsel in argument, there might not be much difficulty in arriving at the conclusion that the rejected poll-book was so altered as to change the result, if not justify its rejection entirely, But this we will not do.

Without saying that we might not come to the same conclusion, aside from the question of previous adjudication, as did the learned .judge who tried the cause in the District Court, we hold that the plaintiffs have failed to prove that there was fraud in obtaining the judgment which they assail, and for this reason the judgment of the District Court is reversed, and petition dismissed absolutely.

Eeversed.