Fenelon v. Butts
| Decision Date | 11 May 1880 |
| Parties | FENELON and wife v. BUTTS, imp |
| Court | Wisconsin Supreme Court |
Argued April 23, 1880
APPEAL from the Circuit Court for Dodge County.
Action for false imprisonment. There was a judgment for the plaintiffs, from which the defendant Butts appealed. The case will sufficiently appear from the opinion.
Judgment revers and new trial ordered.
Eli Hooker, for appellant:
1. The constitutional limitation of the powers of a court commissioner, in the words "provided, that sad powers shall not exceed those of a judge of the circuit court at chambers," contained in art. VII, sec. 23, cannot have reference to territorial powers or territorial jurisdiction. It means simply that whatever things can be done by a circuit judge sitting at chambers, and no others, can be done by a court commissioner. 2. If the person officiating as court commissioner in this case was not legally appointed, he was yet an officer de facto, and his acts, as to third parties are valid. He was appointed in due form by the circuit judge under a law enacted by the legislature; had qualified in accordance with law; had assumed the duties and responsibilities of the office in good faith; and, succeeding one who had exercised the functions of the office for two years unquestioned, had himself been acting in like manner for more than a year, when these proceedings were brought before him. State ex rel. Knowlton v. Williams, 5 Wis., 308; In re Boyle, 9 id., 264; Dean v Gleason, 16 id., 1; State v. Bloom, 17 id., 521; Laver v. McGlachlin, 28 id., 364; In re Baker, 11 How. Pr., 433; People v. Nevins, 1 Hill, 154; People v. Covert, 1 Hill, 674; People v. Stevens, 5 id., 616; Green v. Burke, 23 Wend., 490; State v. Bartlett, 35 Wis., 287; State v. Goldstucker, 40 id., 124; People v. Hopson, 1 Denio, 574; People v. White, 24 Wend., 525; State v. Douglass, 50 Mo., 593; People ex rel. Ballou v. Bangs, 24 Ill., 184; State v. Carroll, 38 Conn., 449; Hoboken v. Harrison, 1 Vroom, 73; Fowler v. Bebee, 9 Mass., 231; Commonwealth v. Fowler, 10 id., 290. 3. Irrespective of the question of jurisdiction of the court commissioner, the court should have instructed the jury that, unless the defendant counseled, directed or requested the imprisonment of the plaintiff, he was not liable. Freeman v. Adams, 9 Johns., 116; Curry v. Pringle, 11 id., 444; Taylor v. Trask, 7 Cow., 249; Brown v. Demont, 9 id., 263; Brown v. Crowl, 5 Wend., 298; Lewis v. Penfield, 39 How., 490; Von Latham v. Libby, 38 Barb., 339; Brown v. Chadsey, 39 id., 253; Peckham v. Tomlinson, 6 id., 253; West v. Smallwood, 3 M. & W., 418; Sowell v. Champion, 6 Ad. & E., 407; Carratt v. Morley, 1 G. & D., 275; Brown v. Chapman, 6 Mann., G. & S., 365; Lock v. Ashton, 12 Q. B., 871; Barber v. Rollinson, 1 C. & M., 330.
For the respondent there was a brief by J. B. Hays and L. P. Fribert, and oral argument by Mr. Hays:
1. The provision in sec. 23, art. VII of the state constitution, that the powers of a court commissioner shall not exceed those of a circuit judge at chambers, has reference not only to the subject matter of his jurisdiction, but as well to the territorial extent thereof. The court commissioner here acted in two counties, lying in different circuits, and his powers, therefore, exceeded those of either circuit judge. Hence, the law authorizing his appointment was unconstitutional; and the proceedings before him, culminating in the imprisonment of the plaintiff, were coram non judice, and absolutely void. 2. Jacobs was not an officer de facto, because there was no such office known to the law as that in which he pretended to officiate. 3. The appellant was liable for the false imprisonment complained of. He instituted the proceedings from which it resulted, prosecuted them by his attorneys, was present in person while they were going on and while the party was being imprisoned, and paid for the imprisomnent. Bonesteel v. Bonesteel, 28 Wis., 245; 1 Wait's Pr., 705; 3 Wait's Act. and Def., 319.
OPINION
The gravamen of the complaint is the two instances of the false imprisonment of the plaintiff Mrs. Fenelon, which it is alleged were directed, procured and caused by the defendant. The defendant justifies the acts complained of by the proceedings had before court commissioner Jacobs, and the commitments made by him, which are set forth in the answer. It appears that supplemental proceedings were instituted by the defendant in Dodge county, before Jacobs, on a judgment rendered in his favor in the circuit court of Fond du Lac county. A transcript of that judgment was filed and the judgment duly docketed in Dodge county, upon which an execution was issued to the sheriff of the latter county. The execution having been returned unsatisfied, the supplemental proceedings were instituted. The plaintiffs resided at the time in Dodge county; Jacobs resided and had his office in that part of the village of Waupun which lies in Fond du Lac county. The examination of the plaintiff Mrs. Fenelon was had before Jacobs at his office, and upon her refusing to answer certain questions asked her concerning her property, she was committed by the commissioner to the jail of Dodge county as for a contempt, there to remain until she was willing to answer. Jacobs signs the order and commitments made out by him as "court commissioner residing at Waupun." It is conceded that he was appointed court commissioner by the circuit judge of the fourth circuit under chapter 49, Laws of 1871. That act authorizes the circuit judge of the fourth circuit to appoint one court commissioner, who shall reside in the corporate limits of the village of Waupun, in either Dodge or Fond da Lac county; and the court commissioner thus appointed is clothed with power and authority to do anything in relation to any subject or matter in either of said counties of Dodge or Fond da Lac, the same as though he were at the [*346h] time a resident of that part of said village of Waupun lying and being in the county in which the party or parties, or subject matter to be affected by his proceedings, may reside or be located, and the same as though he were appointed in said county by the circuit judge having jurisdiction over the same.
As the village of Waupun is organized out of territory situated in two counties and in two judicial circuits, the manifest object of this act is to provide for the appointment of a court commissioner residing in the village, who may act in both counties, and exercise authority in each county to the same extent that a court commissioner properly appointed for such county might do. The justification set up in the answer, therefore, necessarily raises the question as to the validity of the act, and whether Jacobs had any power, under the circumstances, to take jurisdiction of the supplemental proceeding; and we are all very clearly of the opinion that the act itself is obnoxious to insuperable objections and cannot be sustained. That it is not in harmony with the intention of the constitution, and not in accord with the general policy of the statute, seems to be plain. The constitution contains this clause, which has a bearing upon the question: "The legislature may provide for the appointment of one or more persons in each organized county, and may vest in such persons such judicial powers as shall be prescribed by law; provided, that such powers shall not exceed that of the judge of the circuit court at chambers." Section 23, art. VII. It may be difficult to define precisely this grant of power, but it is a fair inference that the authority of the court commissioners should have some territorial restriction. The language used, "the legislature may provide for the appointment of one or more persons in each organized county," would seem to imply a limitation to the county in the jurisdiction conferred.
Now suppose the legislature had provided in the act befo...
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