Blancett v. Wimberley

• Citation: 78 So. 318,16 Ala.App. 402
• Decision Date: 26 February 1918
• Docket Number: 8 Div. 443
• Parties: BLANCETT v. WIMBERLEY et al.
• Court: Alabama Court of Appeals

78 So. 318

16 Ala.App. 402

BLANCETT v. WIMBERLEY et al.

8 Div. 443

Court of Appeals of Alabama

February 26, 1918

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Action by Hugh Blancett, Jr., against Joel R. Wimberley and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Samford J., dissenting.

W.H Norwood, of Scottsboro, for appellant.

Bouldin & Wimberly, of Scottsboro, for appellees.

BROWN P.J.

The averments of the complaint show that the defendant Wimberley a notary public and ex officio justice of the peace, on a charge legally preferred before him by affidavit made by one Smith, charging the plaintiff "with violating the live stock sanitary law" (Acts 1907, p. 413, § 11; Acts 1911, p. 613), proceeded to a trial of the plaintiff on the merits of the charge, adjudging him guilty, and sentencing him to confinement in the county jail for a period of six months as a punishment for the offense, and that on a mittimus issued by the justice the plaintiff was incarcerated in the county jail of Jackson county for a period of eight days by the sheriff of said county. To this complaint, a demurrer was sustained, and plaintiff, declining to plead further, suffered judgment and appeals.

The questions propounded by this appeal are whether Wimberley and the sureties on his official bond are liable to the plaintiff for this invasion of his right of personal liberty, or whether the justice is within the immunity afforded by the rules of law exempting judges of courts from liability for acts done by them in the exercise of judicial functions. This involves the further inquiry whether or not the acts in question were done wholly without jurisdiction, actual or colorable, or whether the case presents one of mere excess of jurisdiction; there being no contention that the acts of the justice were attended by corrupt motives or bad faith. It is conceded that the defendant Wimberley, as ex officio justice of the peace, had the jurisdiction of a committing magistrate, and that as such he had jurisdiction both of the offense and person charged, for the purpose of determining whether or not an offense had been committed, and, if so, whether there was probable cause to believe that Blancett was guilty thereof, and if in the opinion of the justice, after hearing the evidence an offense had been committed, and there was probable cause, the justice had authority to discharge Blancett on bail and in default thereof to commit him to jail, and to this end was authorized to issue a commitment authorizing the sheriff to place him in jail. Code 1907, §§ 7605, 7606.

It is generally agreed that a judge of a court of general jurisdiction is not civilly liable for his judicial acts, where he had jurisdiction of the subject-matter and of the person, whether said acts be erroneous or corrupt, even if he exceeded his jurisdiction; also that a judge of an inferior court has like freedom, where he commits an honest error, while acting within his jurisdiction. There seems, also, to be a general agreement that judges, whether of courts of superior or inferior jurisdiction, who knowingly act without any jurisdiction at all, are civilly liable for the damages accruing therefrom. There is a tendency in the modern cases to hold that an inferior judge who merely exceeds his jurisdiction is not liable, if his acts are not attended with corruption or bad faith. From the more recent leading case in this state we take the following observations:

"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 illegal. *** 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 reason, justice, or policy in any such radical distinction has long been subject to doubt, and is increasingly denied by the best-considered modern cases and by the standard text-writers. *** And there can be no doubt, we think, but that the distinction is sufficiently manifest and public policy fully subserved by the requirement of good faith without malice or corruption, with at least a colorable invocation of the judicial functions in the particular case." Broom v. Douglass, 175 Ala. 275, 57 So. 860, 44 L.R.A. (N.S.) 164, Ann.Cas. 1914C, 1155; Burgin v. Sullivan, 151 Ala. 416, 44 So. 202; Grove v. Van Duyn, 44 N.J. Law, 654, 43 Am.Rep. 412; Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646.

From the argument of appellant's counsel we infer that the justice entertained the view that the act of August 19, 1909 (Acts 1909, pp. 41, 42), was applicable to the case before him, and that he had final jurisdiction and was authorized to adjudge Blancett guilty and impose the sentence which was pronounced. This is used arguendo, but is convincing to the writer that the case here presented is one wherein the justice merely exceeded his jurisdiction, and, his acts being attended with good faith and being without malice or corruption, he is not liable, and therefore that the judgment should be affirmed.

Affirmed.

BRICKEN, J., concurs.

SAMFORD J. (dissenting).

The complaint, which was in one count, was as follows:

"The plaintiff claims of the defendants $1,000 damages for that heretofore, to wit, on the 11th day of May, 1915, the defendant Joel R. Wimberley was a notary public, with the powers of the justice of the peace, in precinct No. 3 in said county of Jackson. Plaintiff avers that on, to wit, 22d day of January, 1915, said Joel R. Wimberley executed his bond as such notary public and ex officio justice of the peace in the sum of $1,000, payable and conditioned as prescribed by law in such cases, which said bond was signed and executed on said 22d day of January, 1915, by the above named codefendants of said Joel R. Wimberley as his sureties therein, and which said bond was approved and ordered to be recorded by the judge of probate of said county on the 22d day of January, 1915, and which said bond is still

...