57 So. 860 (Ala. 1912), Broom v. Douglass

Citation57 So. 860, 175 Ala. 268
Opinion JudgeSOMERVILLE, J.
Party NameBROOM v. DOUGLASS ET AL.
AttorneyKyle & Hutson, for appellant. Wert & Lynne and Callahan & Harris, for appellees.
Judge PanelMayfield, J., dissenting. DOWDELL, C.J., and SIMPSON, ANDERSON, and SAYRE, JJ., concur. McCLELLAN, J., concurs in the conclusion. MAYFIELD, J. (dissenting).
Case DateFebruary 15, 1912
CourtSupreme Court of Alabama

Page 860

57 So. 860 (Ala. 1912)

175 Ala. 268

BROOM

v.

DOUGLASS ET AL.

Supreme Court of Alabama

February 15, 1912

Appeal from Circuit Court, Morgan County; E. W. Speake, Judge.

Action by Henry Broom against W. H. Douglass and another. From a judgment for defendants, plaintiff appeals. Affirmed, and application for rehearing overruled.

Mayfield, J., dissenting.

Page 861

Kyle & Hutson, for appellant.

Wert & Lynne and Callahan & Harris, for appellees.

SOMERVILLE, J.

Appellant sued appellee in trespass for a false imprisonment, done under color of appellee's official authority as a justice of the peace.

Defendant's plea No. 2 set up an alleged justification, and showed that one Johnson appeared before him (defendant) while he was acting as a justice of the peace, and made affidavit "that Henry Broom [the plaintiff here] has threatened to trespass upon and occupy a certain parcel of land situated in this county, and known as the Dick Mitchell or Dick Bouldin place, which affiant has the past two or three years been in possession under claim of ownership;" that on this affidavit the justice issued a warrant of arrest for said Broom; that Broom was arrested on this warrant and brought before the justice; that on the hearing of the cause the justice adjudged that said Broom should be committed to the county jail for 12 months, unless he gave a bond to keep the peace; and that in doing these things he (defendant) was acting judicially. Plaintiff demurred to this plea on the grounds substantially (1) that the affidavit conferred on the justice no jurisdiction to issue the warrant; and (2) that the affidavit did not charge that any criminal offense had been committed or threatened. The trial court overruled the demurrer, and this action is assigned as error.

Conceding, as we must, that the affidavit shown did not charge that Broom had threatened, or was about to commit, "an offense on the person or property of another," the threat shown being, if executed, only a civil wrong, and that the warrant of arrest was for this reason void, the question to be determined is: Is a judge of inferior and limited jurisdiction liable in trespass when, acting within his general jurisdiction of the subject-matter, but without conformity to the preliminary requirements which alone give him jurisdiction of the person and authorize him to proceed to exercise his general jurisdiction in the particular case, he issues process actually void, under which such person is unlawfully taken and restrained of his liberty? The answer, we think, will depend upon a consideration to be stated hereafter.

The general question above mooted has been the subject of much discussion by courts and text-writers, and the books exhibit great diversity of opinion as to its proper solution. It involves and draws into sharp

Page 862

conflict two fundamental and equally cherished principles of our legal system--the inviolability of personal liberty, except under the strictest forms of law, on the one hand, and the dignity and independence of the judiciary, on the other. It is complicated, also, by much confusion of thought with respect to the theory of jurisdiction in its twofold aspect of subject-matter and person.

We need hardly say that the question is not merely whether the injurious process is irregular or utterly void, but, primarily, it is whether, on principles of sound public policy, the judge should be held liable for his action as a judge. Whether or not an executive officer would be liable for the execution of the process is an altogether different question, and is unaffected by the decisive considerations of policy here involved. These considerations have been so often and so well stated that anything more than a brief recapitulation of settled conclusions is now unnecessary.

We deduce from approved authorities the following principles as pertinent to the present case:

(1) The judge of a court of superior or general jurisdiction is not liable for any judicial act in excess of his jurisdiction which involves a present or previous affirmative decision of the fact of his jurisdiction, even though such decision is wholly erroneous, provided there is not a clear absence of all jurisdiction. Busteed v. Parsons, 54 Ala. 393, 25 Am. Rep. 688; Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (leading case); Yates v. Lansing, 9 Johns. (N. Y.) 395, 6 Am. Dec. 290; Lange v. Benedict, 73 N.Y. 12, 29 Am. Rep. 80.

(2) The fact that such judge acts maliciously or corruptly in such cases does not render him liable. Busteed v. Parsons; Bradley v. Fisher, supra; 19 Cyc. 333; note to Lacey v. Hendricks, 137 Am. St. Rep. 47.

(3) A fortiori, the judge of a court of inferior or limited jurisdiction is liable when he acts without a general jurisdiction of the subject-matter, even though his act involves his decision, made in perfect good faith, that he has such jurisdiction.

(4) When such judge acts fully within his jurisdiction, i. e., when he has jurisdiction of the subject-matter, and has also acquired jurisdiction of the person in the particular case, he is not liable, though he act both maliciously and corruptly. Irion v. Lewis, 56 Ala. 190; Heard v. Harris, 68 Ala. 43; Coleman v. Roberts, 113 Ala. 323, 21 So. 449, 36 L. R. A. 84, 59 Am. St. Rep. 111; Woodruff v. Stewart, 63 Ala. 206; Lacey v. Hendricks, 164 Ala. 280, 51 So. 157, 137 Am. St. Rep. 45.

(5) When such judge acts judicially with respect to a subject-matter of which he has a general jurisdiction, but in the particular case he has acquired no jurisdiction of the person affected, he is not liable if the act involves his present or previous affirmative decision that he has jurisdiction of such person and authority to proceed in the particular case, provided (1) a colorable case has been presented to him which fairly calls for or permits the exercise of his judgment with respect thereto; and provided (2) he has determined in good faith, without malice or corruption, that the case presented calls for the exercise of his general jurisdiction. Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412 (leading case); Rush v. Buckley, 100 Me. 322, 61 A. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; McCall v. Cohen, 16 S.C. 445, 42 Am. Rep. 641; Bell v. McKinney, 63 Miss. 187; Gardner v. Couch, 137 Mich. 358, 100 N.W. 673, 109 Am. St. Rep. 684; Smith v. Jones, 16 S.D. 337, 92 N.W. 1084; Thompson v. Jackson, 93 Iowa, 376, 61 N.W. 1004, 27 L. R. A. 92; Robertson v. Parker, 99 Wis. 652, 75 N.W. 423, 67 Am. St. Rep. 889; Calhoun v. Little, 106 Ga. 336, 32 S.E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254; Stewart v. Hawley, 21 Wend. (N. Y.) 552; Landt v. Hilts, 19 Barb. (N. Y.) 283; Ayers v. Russell, 50 Hun, 282, 3 N.Y.S. 338; Bocock v. Cochran, 32 Hun (N. Y.) 523; Harman v. Brotherson, 1 Denio (N. Y.) 537; Gillett v. Thiebald, 9 Kan. 427.

We, of course, do not affirm that all of these cases have elaborated the principle in precise terms. Some of them have, and others clearly illustrate its operation.

There are numerous cases which support the view that a judge of limited and inferior jurisdiction is liable in every case where he acts merely in excess of his actual jurisdiction, so that his act is void, as distinguished from voidable or irregular. Bigelow v. Stearns, 19 Johns. (N. Y.) 39, 10 Am. Dec. 189; Yates v. Lansing, 9 Johns. (N. Y.) 395, 6 Am. Dec. 290; Gruman v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; De Courcey v. Cox, 94 Cal. 665, 30 P. 95; and many other cases cited in notes to Rush v. Buckley, 4 Ann. Cas. 325-332; Tryon v. Pingree, 67 Am. St. Rep. 423; and Austin v. Vrooman, 14 L. R. A. 138.

These cases, however, proceed in general on the narrow view that a void act necessarily imposes liability, which assumes, in accordance with a once much favored theory, that there is a radical distinction between the acts of judges of high and judges of low degree in excess of their jurisdiction, to the extent that the one class should never be held liable, while the other should always be. That there is in reason, justice, or policy any such radical distinction has long been subject to doubt, and is increasingly denied by the best-considered modern cases and by standard text-writers. Rush v. Buckley, 100 Me. 322, 61 A. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; Thompson v. Jackson, 93 Iowa, 376, 61 N.W. 1004, 27 L. R. A. 92, and editorial note; Calhoun v. Little, 106 Ga. 336, 32 S.E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254; Bishop's Noncontract Law, § 783; Throop on Public Officers, § 720; 1

Page 863

Jaggard on Torts, 122. And there can be no doubt, we think, but that the distinction is sufficiently emphasized and public policy fully subserved by the requirement of good faith, without malice or corruption, with at least a colorable invocation of the judicial function in the particular case.

Our views upon this subject are so fully and satisfactorily stated by Beasley, C.J., in Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412, that we adopt his language as a part of this opinion. He said, in part:

"It is said everywhere in the text-books and decisions that the officer, in order to entitle himself to claim the immunity that belongs to judicial conduct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be 'the authority of law to act officially in the particular matter at hand.' Cooley on Torts, 417. But these maxims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appertains to a court or judge exercising a general authority. Their defect is that they leave out of the account all those cases in which the officer in the discharge of his public duty is bound to...

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65 practice notes
  • 33 B.R. 458 (Bkrtcy.N.D.Ga. 1983), 81, Matter of Seven Springs Apartments, Phase II
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • June 14, 1983
    ...re Tip-Pa-Hans Enterprises Co., Inc., 27 B.R. 780 (Bkrtcy.W.D.Va.1983) ). [105] See fn. 1(jj), supra; fn. 104, supra; Broom v. Douglass, 175 Ala. 268, 57 So. 860; Savacool v. Boughton, 5 Wend 170 (NY); Bigelow v. Stearns, 19 Johns 168 (NY); and see Winters v. Schear, fn. 103 [1] Note "......
  • 142 So. 514 (Ala. 1932), 3 Div. 978, Carter v. Mitchell
    • United States
    • Alabama Supreme Court of Alabama
    • May 19, 1932
    ...distinction between a total want of jurisdiction and an excess of jurisdiction. The following is taken from our case of Broom v. Douglass, 175 Ala. 268, 279, 57 So. 860, 864, 44 L. R. A. (N. S.) 164, Ann. Cas. 1914C, 1155: "By 'excess of jurisdiction,' as distinguished from the entire ......
  • 16 So.2d 416 (Ala. 1944), 6 Div. 153, Steele v. Louisville & N. R. Co.
    • United States
    • Alabama Supreme Court of Alabama
    • January 13, 1944
    ...Winn v. Winn, 242 Ala. 324, 6 So.2d 401; Birmingham Trust & Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593; Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A.,N.S., 164, Ann.Cas.1914C, 1155; 24 Am.Jur. p. 88. Certainly the management of the Railroad has as much right to take into ......
  • 75 So. 697 (Ala.App. 1917), 1 Div. 219, Jackson v. Bohlin
    • United States
    • Alabama Alabama Court of Appeals
    • May 8, 1917
    ...board determined in good faith, without malice, that the case presented called for the exercise of such jurisdiction. Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A. (N.S.) 164. The plea was bad for another reason pointed out in the demurrers. It undertakes to answer the charge of tr......
  • Request a trial to view additional results
63 cases
  • 33 B.R. 458 (Bkrtcy.N.D.Ga. 1983), 81, Matter of Seven Springs Apartments, Phase II
    • United States
    • Federal Cases United States Bankruptcy Courts Eleventh Circuit
    • June 14, 1983
    ...re Tip-Pa-Hans Enterprises Co., Inc., 27 B.R. 780 (Bkrtcy.W.D.Va.1983) ). [105] See fn. 1(jj), supra; fn. 104, supra; Broom v. Douglass, 175 Ala. 268, 57 So. 860; Savacool v. Boughton, 5 Wend 170 (NY); Bigelow v. Stearns, 19 Johns 168 (NY); and see Winters v. Schear, fn. 103 [1] Note "......
  • 551 F.2d 1026 (5th Cir. 1977), 75-1794, E. C. Ernst, Inc. v. Manhattan Const. Co. of Texas
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • May 9, 1977
    ...a judge, we protect the integrity of his decisionmaking by guarding against his fear of being mulcted in damages. Cf. Broom v. Douglass, 175 Ala. 268, 57 So. 860 (1912). But he should be immune from liability only to the extent that his action is functionally judge-like. 18 Otherwise we bec......
  • 142 So. 514 (Ala. 1932), 3 Div. 978, Carter v. Mitchell
    • United States
    • Alabama Supreme Court of Alabama
    • May 19, 1932
    ...distinction between a total want of jurisdiction and an excess of jurisdiction. The following is taken from our case of Broom v. Douglass, 175 Ala. 268, 279, 57 So. 860, 864, 44 L. R. A. (N. S.) 164, Ann. Cas. 1914C, 1155: "By 'excess of jurisdiction,' as distinguished from the entire ......
  • 16 So.2d 416 (Ala. 1944), 6 Div. 153, Steele v. Louisville & N. R. Co.
    • United States
    • Alabama Supreme Court of Alabama
    • January 13, 1944
    ...Winn v. Winn, 242 Ala. 324, 6 So.2d 401; Birmingham Trust & Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593; Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A.,N.S., 164, Ann.Cas.1914C, 1155; 24 Am.Jur. p. 88. Certainly the management of the Railroad has as much right to take into ......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • Construction Law, Second Edition
    • January 1, 2019
    ...App. 1988), 519 n.24 Broomield Senior Living Owner, LLC v. R.G. Brinkmann Co., 413 P.3d 219 (Colo. App. 2017), 613 n.3 Broom v. Douglass, 175 Ala. 268, 57 So. 860 (1912), 221 Browning v. Maurice B. Levien & Co., 262 S.E.2d 355 (N.C. Ct. App. 1980), disc. rev. denied, 267 S.E.2d 673 (N.C......
  • Architect's Contract Administration
    • United States
    • Construction Law, Second Edition
    • January 1, 2019
    ...a judge, we protect the integrity of his decision making by guarding against his fear of being mulcted in damages. Cf. Broom v. Douglass, 175 Ala. 268, 57 So. 860 (1912). But he should be immune from liability only to the extent that his action is functionally judge-like.60In RPR & Asso......

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