Comstock v. Eagleton

• Citation: 11 Okla. 487,1902 OK 20,69 P. 955
• Court: Oklahoma Supreme Court
• Decision Date: 16 July 1902
• Parties: J. O. COMSTOCK v. WM. L. EAGLETON.

1902 OK 20

69 P. 955

11 Okla. 487

J. O. COMSTOCK v. WM. L. EAGLETON.

Supreme Court of Oklahoma

Decided: July 16, 1902

Error from the District Court of Pawnee county; before Bayard T. Hainer, Trial Judge.

Syllabus

¶0 1. CASE-MADE--Notice--Waiver. Where the certificate of the judge, who settled and signed the case-made, affirmatively shows that the same was submitted to him to be settled and signed by the parties to the cause, at a time and place different from that named in the notice, no objection appearing in the record, and no showing made in this court to the contrary, the notice required will be presumed to have been waived.

2. PROBATE JUDGE--Liability for False Imprisonment. A probate judge in passing and rendering judgment in a bastardy case pending in his court acts judicially and is not amenable to a civil action for false imprisonment, though the judgment was erroneous, and in rendering such judgment he erroneously exceeds the jurisdiction of his court.

3. MINISTERIAL ACTS PROTECTED. A probate judge issuing a commitment carrying into effect, and supported by a judgment of his court, having jurisdiction of the person and of the subject-matter, will be protected against a civil action for damages for false imprisonment under such commitment.

C. J. Wrightsman, for plaintiff in error.

Lewis P. Mosier and A. J. Biddison, for defendant in error.

Action by J. O. Comstock against Wm. L. Eagleton for false imprisonment. Judgment for defendant upon demurrer to petition, dismissing action, and for costs. Plaintiff here by petition in error for review. The facts will more fully appear in the opinion.

BEAUCHAMP, J.:

¶1 The defendant on the 3rd day of June, 1902, filed a motion in this court to strike from the files the case-made, and to dismiss the petition in error, for the reason that the record affirmatively shows that the case-made was not settled and signed as required by law, the order of the district judge or the notice served upon the defendant's attorney.

¶2 The record discloses that upon the rendition of the judgment herein, on the 16th day of November, 1900, on application, the district court ordered that the plaintiff be given twenty days to make and serve a case-made, the defendant five days to suggest amendments thereto, and that the case be settled on three days' notice in writing by either party. The case-made was served upon the defendants attorney on November 19, 1900. On the 23rd day of October, 1901, the plaintiff's attorney served notice in writing upon the defendant's attorney, that on the 26th day of October, 1901, at nine o'clock a. m., or so soon thereafter as counsel could be heard, he would apply to the judge at his chambers in the city of Perry, Noble county, to settle and sign the case-made. The certificate of the judge certifies:

"That the case-made and amendments thereto have been duly served in due time, and the amendments thereto duly suggested, and the same was duly submitted to me for settlement and signing, as required by law, by the parties to said cause. * * *

"Witness my hand at the city of Newkirk, Noble county, * * the 25th day of October 1901."

¶3 Where the certificate of the judge, who settled and signed the case- made, affirmatively shows that the same was submitted to him to be settled and signed by the parties to the cause at a time and place different from that named in the notice, no objections appearing in the record, and no showing made in this court to the contrary, the notice will be presumed to have been waived. The motion is overruled.

¶4 The plaintiff commenced this action in the district court of Pawnee county to recover damages for false imprisonment in the sum of $ 5317.50, and in his amended petition, for cause of action, alleges:

"First: That the said defendant is now, and was at all the times hereinafter named, the duly qualified and acting probate judge within and for Pawnee county, Oklahoma territory.

"Plaintiff further states that on the 7th day of February, 1900, the probate court in and for Pawnee county, Oklahoma territory, in which the defendant, William L. Eagleton, was then and there sitting and acting as the sole presiding judge thereof, rendered a judgment against the plaintiff in a certain bastardy proceeding then pending in the said probate court of the county of Pawnee, and Territory of Oklahoma, wherein the territory of Oklahoma was plaintiff and J. O. Comstock was defendant, by the terms of which judgment, amongst other things, the said court ordered that J. O. Comstock be remanded to the custody of the sheriff of Pawnee county, Oklahoma, to be by him committed to the common jail of Pawnee county, O. T., until the costs of said prosecution, in the sum of $ 104.20, be paid, and until the said J. O. Comstock should furnish a bond to the Territory of Oklahoma, with good and sufficient sureties, to be approved by the judge of the probate court of Pawnee county, Oklahoma territory, providing that the said J. O. Comstock should pay the sum of $ 5 per month, on the first day of each and every month, commencing on the first day of March, 1900, for each and every month thereafter for the term of four years. (A copy of the judgment is attached to the petition as an exhibit.)

"Plaintiff further states that on the 9th day of February, 1900, the said defendant, Eagleton, issued a warrant of commitment to T. M. Grant, as the sheriff of Pawnee county, Oklahoma, upon said judgment above named."

¶5 Then follows the commitment which recites the charge in the complaint in the probate court, the arraignment, plea of the defendant, trial, verdict of the jury, sentence and judgment of the court, and commands the sheriff of Pawnee county "to safely keep said J. O. Comstock until the bonds above mentioned are duly made and approved by the judge of the probate court and until he pay the costs of the prosecution, or until he shall be discharged therefrom by due process of law."

"And plaintiff further states that under and by virtue of said order of commitment to the said sheriff of Pawnee county, Oklahoma, the said defendant Eagleton did therein and thereby request, direct, instigate, cause and procure the said J. O. Comstock to be imprisoned and deprived of his liberty by the said sheriff of Pawnee county, Oklahoma, who, under the said order of commitment, on the 9th day of February, 1900, took the plaintiff into his custody, and unlawfully and with force, and without any authority of law, kept detained and imprisoned him for the space of 117 days immediately following said date. That the said warrant of commitment issued by the said Eagleton as probate judge aforesaid is void on its face; and that for no other cause was said J. O. Comstock imprisoned and restrained of his liberty than that set forth in said commitment." (Then follows allegations of damages.)

¶6 The defendant demurred to the petition for the reason that the same does not state facts sufficient to constitute a cause of action. The court, upon consideration, sustained the demurrer, and the plaintiff electing to stand on his petition, dismissed the action and adjudged the costs to the plaintiff, to which action and judgment of the court the plaintiff excepted, and brings the cause here by petition in error for review.

¶7 It is admitted by plaintiff in error, in his brief, that in the case complained of, the probate court of Pawnee county, of which defendant in error was, at the time, the presiding judge, had jurisdiction both of the subject-matter and of the person of the defendant; that the trial of said cause was conducted in strict conformity to law; and that the judgment rendered therein was valid and binding, except that portion thereof which reads: "It is a further order of the court that the defendant, J. O. Comstock, be remanded to the custody of the sheriff of Pawnee county, Oklahoma territory, to be by him committed to the common jail of Pawnee county until the bonds above mentioned are made and approved, and the costs of the prosecution paid." This, he contends, was in excess of the jurisdiction of the probate court, therefore void, and that a commitment issued thereunder was without authority and void.

¶8 Under what circumstances can a judge of the probate court be held liable to a civil action for damages for an act done by him in his capacity as judge? Nothing is more essential and important than that the judiciary shall be independent. Every judge should feel...