Atwood v. Atwater

• Decision Date: 02 January 1895
• Citation: 43 Neb. 147,61 N.W. 574
• Parties: ATWOOD v. ATWATER ET AL.
• Court: Nebraska Supreme Court

43 Neb. 147

61 N.W. 574

ATWOOD

v.ATWATER ET AL.

Supreme Court of Nebraska.

Jan. 2, 1895.

Syllabus by the Court.

1. A judicial officer, acting within his jurisdiction, and in a judicial capacity, is not liable in a civil action for his judicial acts. A mere error of judgment does not subject him to an action for damages.

2. A ministerial officer is not liable in an action for false imprisonment for the arrest of a person, under a warrant lawful on its face, and issued by proper authority. If such officer exceeds his authority, and acts oppressively, in the execution of the process, he will not be protected therein.

Error to district court, Saline county; Morris, Judge.

Action by Jesse Atwood against Jared T. Atwater and W. T. Buchanan to recover for false imprisonment. Defendants were marshal and police judge, respectively, for the city of Crete. From a judgment for defendants, plaintiff brings error. Affirmed.E. S. Abbott, for plaintiff in error.

Geo. H. Hastings, for defendants in error.

NORVAL, C. J.

This was an action by Jesse Atwood against Jared T. Atwater and W. T. Buchanan for false imprisonment. From a verdict and judgment in favor of both the defendants, the plaintiff brings error. The petition charges, substantially, that the plaintiff was, on the 1st of August, 1889, assaulted by the defendants, and then imprisoned by them in the city jail of the city of Crete, which was in a filthy and indecent condition, for the period of 36 hours next following, without any just or reasonable cause therefor; that in consequence of such imprisonment plaintiff was prevented from attending to his business, and suffered great mental anguish, a sense of shame, humiliation, degradation, and other wrongs and injuries, to his damage in the sum of $1,000, including $50 for costs and attorney's fees in procuring his release from imprisonment. The defendants filed separate answers, denying each and every averment in the petition contained, and setting up, as a justification for the arrest and imprisonment of the plaintiff, that the defendant William T. Buchanan was the duly elected, qualified, and acting police judge of the city of Crete, and that the defendant Jared T. Atwater was the duly appointed, qualified, and acting city marshal of said city; that, on the date mentioned in the petition, a complaint, in due form, was filed in the office of such police judge, charging the plaintiff with having violated the ordinance of said city relating to the keeping and harboring of dogs within the corporate limits of such city, upon which complaint a warrant was duly issued and signed by said police judge for the arrest of plaintiff, which was delivered to said city marshal to be served, who, in pursuance of the command therein, arrested this plaintiff, and took him before the said police judge; that thereupon a trial was had upon said complaint in the manner provided by law, and the plaintiff was convicted of the offense charged in said complaint, and the court assessed a fine of $2 and costs of prosecution, and to stand committed to the city jail until such fine and costs were paid; that plaintiff refused to pay either the fine or costs, and defied the defendants and the city authorities to imprison him; that the plaintiff asked that he be imprisoned in order that he might bring an action for false imprisonment against the city and against its officers, whereupon the police judge, as in duty bound to do, issued a mittimus in due form of law, directed to the city marshal, to safely keep the plaintiff until said judgment and sentence were complied with, and in accordance with the command thereof the city marshal did commit the plaintiff to the city jail, and there held him under and by virtue of said mittimus for about 24 hours, and that all the acts done and complained of by the plaintiff were done under and by virtue of the said warrant and the said mittimus, duly issued and placed in the hands of the said city marshal. The answer further pleads that the action is barred by the statute of limitations, but this defense is not now relied upon. The plaintiff, for reply to the several answers, admits that the defendants at the time mentioned were, respectively, the police judge and city marshal; that a complaint was filed as alleged, and plaintiff was arrested thereon, and brought before said police judge as alleged, and that he was fined as stated; but avers that he was adjudged guilty on his plea of not guilty, and was fined without trial, or without proof of any kind being adduced before said police judge. Plaintiff also denies the existence of any ordinance such as is referred to in the answers; denies the existence of any law, ordinance, or other authority of any kind requiring or permitting the imprisonment of any person in the jail of said city on conviction for the violation of its ordinances. It does appear that the police judge sentenced Atwood without having first made and enteredupon his docket a finding that he was guilty, and for this error Atwood was discharged upon habeas corpus. Atwood v. Atwater, 34 Neb. 402, 51 N. W. 1073.

The sole errors assigned for a reversal are based upon the giving of the first and third paragraphs of the court's charge to the jury, and the refusing to give the first and second instructions requested by the plaintiff. The instructions given by the court upon its own motion, which are here complained of, read as follows: “(1) Gentlemen of the jury, the court instructs you that, under the pleadings and the law in this case, the only question for you to consider is the manner of treatment received by this plaintiff while under arrest and in the act of arrest.” “(3) If the jury shall find from the evidence that in the matter of the arrest, and in their conduct towards the plaintiff while he was under arrest, they were no more harsh or cruel than the circumstances under which they acted required, or as ordinarily prudent and careful men would act under the same circumstances, then your verdict should be for the defendants.” The evidence adduced on the trial of the cause is not before us, the same not having been preserved by a bill of exceptions. As a reviewing court, therefore, we must assume that there was evidence before the jury tending to establish the defense pleaded by the defendants in their answers. We have, then, only to determine whether the foregoing instructions were erroneous, in view of the defense interposed and the issues tendered by the pleadings.

The jury were told, in effect, by the instructions of which complaint is made, that the defendants were not liable unless they treated the plaintiff in making the arrest, or while under arrest, in a more harsh or cruel manner than was warranted under the circumstances of the case. In other words, that the police judge incurred no liability by reason of the issuing of the warrant and mittimus, and that they protected the city marshal in executing the same, in all his acts committed within the scope of his duties; but if he unnecessarily abused the plaintiff in making the arrest, or while under arrest, he must respond in damages. It is a familiar rule to the bench and the profession, and one of great antiquity, that a judicial officer, whether of a court of limited or of general jurisdiction, is not liable in a civil action for acts performed in his judicial capacity, if he has acquired and does not exceed the jurisdiction conferred by law. He is not liable in damages for mere error of judgment, while acting within his jurisdiction, but he is not protected if he assumes to act beyond the scope of his authority. 2 Freem. Judgm. § 530; Harman v. Brotherson, 1 Denio, 537;Weaver v. Devendorf, 3 Denio, 117;Horton v. Auchmoody, 7 Wend. 200;Stewart v. Hawley, 21 Wend. 552;Carter v. Dow, 16 Wis. 317;Wall v. Trumbull, 16 Mich. 228; Little v. Moore, 4 N. J. Law, 74; Butler v. Potter, 17 Johns. 145;Pratt v. Gardener, 2 Cush. 63;Craig v. Burnett, 32 Ala. 728;Clark v. Holdridge, 58 Barb. 61;Busteed v. Parsons, 54 Ala. 393;Marks v. Townsend, 97 N. Y. 590;Marks v. Sullivan, 9 Utah, 12, 33 Pac. 224.

The reason for the rule stated is well expressed by Chief Justice Kent in Yates v. Lansing, 5 Johns. 282, in the following language: “No man can foresee the disastrous consequences of a precedent in favor of such a suit. Whenever we subject the established courts of the land to the degradation of private prosecution, we subdue their independence, and destroy their authority. Instead of being venerable before the public, they become contemptible; and we thereby embolden the licentious to trample upon everything sacred in society, and to overturn...