Cox v. Perkins
| Decision Date | 23 February 1945 |
| Citation | 299 Ky. 470,185 S.W.2d 954 |
| Parties | COX v. PERKINS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.
Action by Hubert Junior Cox, by his next friend, J. C. Cox, against Howard H. Perkins, to recover damages for alleged unlawful wrongful and malicious imprisonment. From a judgment for defendant, following the sustaining of defendant's motion for a peremptory instruction, the plaintiff appeals.
Reversed.
Garrett M. Castle, of Gatliff, for appellant.
C. B Upton, of Williamsburg, for appellee.
The appellant, Hubert Junior Cox, by his next friend, J. C. Cox filed his petition in the Whitley Circuit Court seeking damages for an alleged unlawful, wrongful and malicious imprisonment. He alleged that the defendant, Howard H Perkins, appellee herein, was the duly elected, qualified and acting Justice of the Peace in and for the Seventh Magisterial District of Whitley County; that on the 27th day of July, 1943, as such Justice of the Peace, the defendant issued a warrant of arrest for appellant, charging him with adultery; that on the 3d day of August, 1943, the defendant, acting as Justice of the Peace of the Seventh Magisterial District, proceeded to try the appellant in the courthouse in the City of Williamsburg, Kentucky, which is without the territorial limits of the Seventh Magisterial District and within the territorial limits of the First Magisterial District of Whitley County; that after impaneling a jury and hearing the evidence, the defendant, acting as Justice of the Peace, rendered a judgment against the appellant fixing his punishment at a fine of $50 and costs in the sum of $19.75, and, thereupon, committed the appellant to the jail of Whitley County, Kentucky, to satisfy the judgment; that the appellant was confined in the jail of Whitley County, upon a commitment issued upon the judgment, from the 3d day of August, 1943, until the 14th day of August, 1943, or a total of eleven days. Copies of the warrant of arrest and judgment rendered were filed with the pleading. He alleged that, by reason of the fact the trial was held without the territorial limits of the Seventh Magisterial District, the judgment rendered was null and void and that the defendant was without jurisdiction to hear, try or determine the case against the appellant; that without any cause for so doing, and against the will and consent of the appellant, the defendant issued a mittimus on said void judgment, and did unlawfully, wrongfully, wilfully and maliciously cause the appellant to be carried along the public streets of the City of Williamsburg to the county jail of Whitley County, and there confined him in the jail for eleven days.
Defendant filed answer in which he admitted certain allegations and denied others, then pleading affirmatively, he stated that the plaintiff is estopped; that he waived any right, if he ever had such, to sue and complain of the place such trial was had or held, as set out in plaintiff's petition, because no objection was made at the time of the trial as to the place of holding the trial; that the trial was held in Williamsburg upon the motion and request of the plaintiff and his father, and that by reason of the acts and conduct of the plaintiff and his next friend, J. C. Cox, they are now estopped and barred and have waived any right to complain.
Plaintiff filed general demurrer to the answer which was overruled. The cause came on for trial, and at the close of the testimony for the plaintiff, the court sustained defendant's motion for peremptory instruction, from which the plaintiff appeals.
There is considerable acrimonious argument by attorneys on each side of this litigation. It will be unnecessary to discuss the various points raised by them, some of which have little, if any, bearing upon the issues present in this action. Consideration of the contention that the court erred in giving a peremptory instruction for the defendant will dispose of the case and leave it unnecessary to discuss the various questions raised by briefs. In deciding that question it becomes necessary to look carefully to the pleadings and the proof.
Two paramount questions are involved in the consideration of this proposition: (1) Is a judgment rendered and entered by a Justice of the Peace, while acting without his territorial jurisdiction, void, and does a judgment so rendered create an actionable cause for damages against the Justice of the Peace so acting? (2) Was the proof introduced by the plaintiff below of sufficient character and quality to support the allegations of the petition? KRS 25.630 provides the manner and authority of a justice of the peace for conducting trials without the territorial limits of his district. This statute by no means generalizes judicial power. In fact, it recognizes the necessarily local nature and authority within the territorial limits of the magisterial district. In the case of Wheeler v. Schulman, 165 Ky. 185, 176 S.W. 1017, 1019, Judge Hurt wrote an extended and exhaustive opinion dealing with the jurisdictional rights of justices of the peace, in which he said:
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