Duffin v. Summerville

63 So. 816, 9 Ala. App. 573, 1913 Ala. App. LEXIS 351

• Court: Alabama Court of Appeals
• Decided: December 4, 1913
• Status: Published

Opinion

THOMAS, J. —

Justices of the peace, in their official character as such, exercise two-fold functions, those which are judicial, and. those which are ministerial. Such acts of theirs as are usually performed by a judge of a court of record — that is, such as permit the exercise of legal discretion, or require the decision of questions of law — are judicial; while those of a clerical nature— that is, of a character similar to the official acts of a clerk of a court of record, such as issuing process, etc.— are ministerial. In other words, justices of the peace are both the judges and clerks, in a sense, of their respective courts, although their courts are not courts of record.

With respect to their’ ministerial duties, they, of course, are liable, as are other ministerial officers, for damages, either for nonfeasance, misfeasance, or malfeasance, to the party aggrieved; but, with respect to their judicial duties, they are, as are other judicial officers, exempt from civil liability for any and all of their judicial acts, however erroneous those acts may be, and however malicious or corrupt may have been the motive prompting them, if done or performed in a cause wherein they have jurisdiction of both the subject-matter and the person. — 18 Am. & Eng. Ency. Law, 46 et seq.; Kelly v. Moore, 51 Ala. 364; Mason v. Crabtree, 71 Ala. 479; Coleman v. Roberts, 113 Ala. 323, 21 South. 449, 36 L. R. A. 84, 59 Am. St. Rep. 111; McLendon v. Am. F. Land Mort. Co., 119 Ala. 518, 24 South. 721; Scott v. Ryan, 115 Ala. 587, 22 South. 284; Crosthwait v. Pitts, 139 Ala. 421, 36 South. 83; Burgin v. Sullivan, 151 Ala. 416, 44 South. 202; Early v. Fitzpatrick, 161 Ala. 172, 49 South. 686, 135 Am. St. Rep. 123. In such case, the only personal redress which the law affiords one who has been injured by the erroneous judgment of a justice of the peace, whether it resulted from mere mistake or from malice on his part, is correction upon appeal or certiorari, when the motives of the justice in rendering the judgment or decision cannot be inquired into. This policy of granting immunity to judicial officers from private action for judicial acts is, as has been often declared, grounded in an aim to secure the independence of judicial thought and action, for, if they might be subjected to suit, and thereby harassed, by every losing litigant avIio might see fit to question their motives- their freedom of thought would/ be shackled by a constant fear, from which even the honest and innocent would not be exempt. The law, therefore, wisely reserves to society at large, as embodied and represented in the state — the government itself, in theory impartial ■ — the right to question the motives of a judicial officer for judicial acts, and this only in solemn form by impeachment proceedings, or by an indictment for misconduct in office.

It must not be supposed, however, that the law counts as a judicial act, and grants immunity from suits by individuals for damages resulting therefrom, every act, seemingly such, which a justice of the peace may perform. For it to be a judicial act, entitling him to the exemption mentioned, it must not only be a judgment, or decision, or conclusion of some kind of a legal or judicial nature, but it must be done or performed in a matter wherein the justice has jurisdiction to act; otherwise, it is not a judicial act within the contemplation of law- however much it may have involved the exercise of judgment and discretion, but is-merely the act of the individual, not the judge, assuming an authority he does not possess. For his wrongful acts of this nature, a justice of the peace is liable, and section 1500 (subdivision 3) of the Code likewise makes his sureties liable, in declaring them, as it does, to be liable (quoting its words) for “any wrongful act committed under color of his office.” — Kelly v. Moore, supra; McLendon v. Am. F. Land Mort. Co., supra; and other authorities, supra.

But it is not every act of this class, though all are erroneous, that the law condemns as wrongful to the extent of making it the basis of an action against him for damages. — See 18 Am. & Eng. Enc. Law, 47, 48. For instance, it has been held by high authorities — correctly so on principle, we think, and which we will follow in this case, knowing of no decision to the contrary in this state — that- where the Avant of jurisdiction of a justice of the peace over a particular case is caused by matters of fact, it must appear, in order to hold him liable for acts done Avithout jurisdiction, that those matters of fact Avere knoAvn to him, or ought to have been knoAvn by him. — Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 472; Hendrick v. Whittemore, 105 Mass. 28; 18 Am. & Eng. Ency. Law, 48; 17 Am. & Eng. Ency. Law, 732. In other Avords, extending the application of the same principle by differently stating it, a justice of the peace is not liable for mere error of judgment in determining, in favor of his jurisdiction, the existence of a matter of fact upon which the laAV makes that jurisdiction to depend, unless it appears that he either knew that the fact did not exist or should have known it. While ignorance of the laAV excuses no one, ignorance of the fact sometimes does. For instance, if a justice of the peace should assume to try an ejectment suit brought before him, even though the defendants were duly served Avith proper process so as to give him jurisdiction of their persons, the proceedings would be void for Avant of jurisdiction of the subject-matter, and he Avould be liable- Ave apprehend, to parties aggrieved for all damages proximately resulting therefrom, and could not plead in justification of his act his ignorance of the law. — Earp v. Stephens, 1 Ala. App. 450, 55 South. 266. But, on the other hand, if he proceeds and enters up judgment by default against defendants in a suit of detinue where the value of the property sued for does not exceed $100, or in other suits where he Iras jurisdiction of the subject-matter, brought before him, when the summons issued upon the complaint has been returned by the proper officer as being duly executed, though in fact it was not, we are of opinion that the justice would not be liable to the defendants for his act in entering up such judgment, though he acquired no jurisdiction whatever of their persons — unless it is made to appear that he knew that the fact stated in the return of service of the summons was false. His ignorance, under such circumstances, of a fact — the want of service of the process npon the defendants, although such service was essential to support his jurisdiction — would excuse him. He had a right to rely upon the solemn return of an o fficer who was acting under the sanction of an official oath, and would not be liable, we think, in the absence of knowledge or notice that the facts were contrary to what the return stated. — Withers v. Coyles, 36 Ala. 320.

Likewise, if’ in such a suit — one wherein he has jurisdiction of the subject-matter — even though there had been no service of summons upon defendants, and no return of service, and no voluntary appearance by them personally, but an appearance in court of some other person professing to have authority to make a general appearance for the defendants, though he did not in fact have such authority, the justice of the peace would not be liable to the defendants for proceeding in the case to judgment against them on such appearance, provided he swore the professed agent as to his authority — unless the justice knew that the oath of the professed agent in this particular was false, or had good reason to believe it false. If he acted in good faith in relying upon the sworn testimony of a professed agent to the effect that he was such agent, and that he had authority from defendants to appear for them and confess judgment, even though he did not, we do not think the justice would be liable for entering up a judgment on such confession.— Withers v. Coyles, supra. Of course, tbe justice, in ascertaining Avbetber he bad jurisdiction of tbe persons of defendants, Avho bad not been served with process, and against Avhom no return of service bad been shoAvn, could not act upon tbe appearance and confession of judgment for them of a professed agent, unless that agent, if be Avas not an attorney at laAV (Code’ § 2990), Avas duly SAVorn and testified to bis authority. But, if he Avas so sworn and testified, this Avas legal evidence upon Avhich the-justice might act in determining bis jurisdiction, and if be did so in good faith, although tbe agent’s testimony was false, the justice would not be liable. On tbe contrary, if he knew it Avas false, or bad good reason to believe it so, be would be liable.

Keeping in mind these principles and tbe application of-them as-given, we can dispose of the present case without much further discussion. All counts of: tbe complaint, except counts 6 and 7, were withdrawn, and these two, together with defendants’ demurrers thereto, will be set out in the report of the case. Pleadings are to be construed most strongly against tbe pleader, and it will be observed from a reading of tbe complaint that it fails to disclose an averment of any fact, or even a conclusion, as for that, .going to show that tbe defendant justice bad no jurisdiction of tbe cause in which be entered the judgment by confession that is complained of. Presumptively’ then, he had jurisdiction both of the subject-matter of the suit (detinue) wherein the judgment by confession was rendered and of the person of the present plaintiff, wbo was one of tbe defendants therein, for, for aught to tbe contrary appearing from tbe allegations of tbe complaint, tbe valúe of tbe property sued for was less than $100, thereby bringing tbe subject-matter Avithin tbe jurisdiction of tbe court, and, for aught to the contrary appearing from such allegations, the present plaintiff:, one of the defendants in that suit, was duly served therein with summons properly issued, thereby bringing her person within the jurisdiction of the court. If, then, the justice had jurisdiction of both the subject-matter of the suit and the person of the defendant, the present plaintiff (whicji must be presumed, the contrary not appearing, as seen), then he had full power and authority to enter up a judgment by default against her, which he should have done, on account of her failure (which she avers) to appear at court’ and, if he had such power and authority, is he liable to her for erroneously entering that judgment as by confession, instead of by default — even granting, as alleged in the complaint, that the. agent professing to', have authority to confess judgment for plaintiff had no such authority? We are of opinion that the act of the justice in entering the judgment falls within the class of judicial acts for which he is exempt from liability. It was not a usurpation of jurisdiction, or an act performed in a cause where he had no jurisdiction; but a judicial act done in a case where he had full jurisdiction of both the subject-matter and the person. — Authorities supra.

On the other hand, if we assume as- true what some of the evidence tends to show, but what is not alleged, as seen, in the complaint, that the plaintiff was not served with summons as a defendant' in that detinue suit, and if we further assume as true the allegation in the complaint, which some of the evidence also tends to support, to the effect that the plaintiff authorized no one to voluntarily appear for her and waive such service by confessing judgment, the justice would yet not be liable, as we have endeavored hereinbefore to demonstrate — either provided the summons was returned as properly executed by a duly authorized officer (as some of the evidence tends to show), or provided some other person (the evidence tends to show it was her husband) appears and under oath professes authority to represent plaintiff by confessing judgment for her — unless the justice knew, or had good cause to know, in the one case, that the return was false, and’ in the other, that the professed agent was without real authority. — Withers v. Coyles, supra.

Of course, if the complaint had averred that the plaintiff was not served with any summons -in the detinue suit, in addition to averring, as it did do, that she was not present at court, and did not authorize any one else to be present at court and confess judgment for her (these facts being the equivalent of an allegation that the justice acquired no jurisdiction of her person in the suit), the duty would then rest upon him, if the allegation be true, and he would otherwise defeat the action, of pleading and proving that, although he in fact acquired no jurisdiction of her person, he in good faith at the time determined that he did acquire such jurisdiction, and that in doing so he acted on legal evidence— either upon a return on the summons showing service by the bailiff, or upon the oath of the person who appeared in court with professed authority to confess judgment for her. — Withers v. Coyles, supra. The law requires a justice to ascertain the existence of the facts upon which his jurisdiction may rest before he is authorized to act in the controversy, and, when they do not exist, it presumes his knowledge of their nonexistence so as to hold him liable for the consequences of his exercising such jurisdiction, until he shows that, notwithstanding he had no jurisdiction, he determined at the time that he did have, and that in doing so he acted in good faith, and upon such legal evidence as would warrant an honest belief of its existence. — Withers v. Coyles, supra. The complaint, failing, as it does, to aver that plaintiff was not served with summons in the detinue suit, leaves the inference that the justice had jurisdiction of her person, and, he having likewise inferentially jurisdiction of the subject-matter of the suit, the act on his part in entering up the judgment by confession, which is complained of, though erroneous (since the judgment should have been by default), was a judicial act for which he is not liable; and the demurrer raising this point should have been sustained.

■ What we have hereinbefore said is sufficient to guide the court and the pleaders on another trial, and to indicate, without further discussion, the reason of the further conclusion we reach that the demurrers of plaintiff to defendants’ pleas numbered 3’ 4, and 5 were properly sustained.

For the error of the court in not sustaining defendants’ demurrer to the sixth and seventh counts of the complaint (the only counts not withdrawn), the judgment is reversed.

Reversed and remanded.