Cottingham v. Fortville & Noblesville Turnpike Co.

14 N.E. 479, 112 Ind. 522, 1887 Ind. LEXIS 441

• Court: Indiana Supreme Court
• Decided: December 10, 1887
• Docket: No. 12,967
• Status: Published

Opinion

Elliott, J.

The appellee charges that the appellant unlawfully and without right tore up its turnpike and constructed an open ditch across it ten feet in depth and fifteen feet in width. The answer of the appellant attempts to justify bypleading a judgment ordering the opening of the ditch, and by averring that the ditch constituted part of the line of a ditch ordered to be opened and constructed by the appellant as a commissioner of drainage.

Filed Dec. 10, 1887.

It is contended by the appellant’s counsel that, by force of ■section four of the drainage law of 1883, there is no personal liability on the part of the appellant, but that he is liable only in his capacity as drainage commissioner. The appellant was a trespasser, for the appellee was not bound by the judgment in the drainage proceedings, as it was not a party to those proceedings. Doubtless, if the appellee had been a party to those proceedings, then the appellant would be protected, although there were errors or irregularities in the proceedings ; but here there was no jurisdiction of the person of the appellee, and without jurisdiction the judgment is void.

A void judgment will not protect an officer. Rutherford v. Davis, 95 Ind. 245. An officer is liable as an individual where he commits a trespass. He can not defeat one who sues him by alleging that he acted in an official capacity, unless there is some legal process giving at least color of rightful authority to his acts.

Judgment affirmed.