Marks v. Sullivan

• Decision Date: 15 April 1893
• Court: Utah Supreme Court
• Parties: WOLF MARKS AND ANOTHER, RESPONDENTS, v. JOHN T. SULLIVAN AND OTHERS, APPELLANTS

33 P. 224

9 Utah 12

WOLF MARKS AND ANOTHER, RESPONDENTS, v. JOHN T. SULLIVAN AND OTHERS, APPELLANTS

Supreme Court of Utah

April 15, 1893

APPEAL from a judgment, and from an order refusing a new trial, of the district court of the first district, Hon. John W Blackburn, judge. The opinion states the facts.

Reversed.

Mr John W. Judd and Mr. J. W. N. Whitecotton, for the appellants.

Mr Charles S. Varian, Mr. George Sutherland and Mr. William H. King, for the respondents.

Miner J. ZANE, C. J., and BARTCH, J., concurring in the conclusion.

OPINION

Miner, J.

This action is brought to recover damages for an assault and battery and false imprisonment. It appears from the abstract that one W. H. Culmer had brought a suit for forcible entry and detainer in Commissioner Hill's court at Provo, Utah county, against Anna Marks, for possession of premises in Tintic precinct, Juab county. Execution for possession was issued on the judgment to defendant Sullivan, a constable of Juab county. When Sullivan began the execution of the writ, on December 19, 1887, he read over the writ to the defendant, who made some objections to the proceedings. Her attorney was called in, and, after reading the execution, said it was regular, and advised plaintiff to surrender peaceable possession of the property. The officer left his deputy in possession of the house, and went away for a short time, and, when he returned, found the door locked, and plaintiff, with a revolver in each hand, within the house, and she refused him admission. Sullivan then went before defendant Dana, a justice of the peace of that precinct, exhibited his execution, stated the facts of plaintiff's resistance in a sworn complaint, and obtained a warrant in due form for the arrest of the plaintiff on the charge of resisting him in the lawful discharge of his duties. Sullivan arrested the plaintiff on this warrant, and took her before said justice for examination. She resisted such arrest, and had to be carried or dragged along to the justice's office. She obtained a continuance of the case from time to time until the 23d of December, at which time she waived examination, and gave bonds to appear before the next grand jury. The plaintiff brings this action against the justice who issued the warrant of arrest, the constable who served the warrant, Belle Tompkins, and others who aided in her arrest, for an assault and battery and false imprisonment, alleged to have been committed by the defendants at and during such arrest, and the confinement consequent thereon. It is claimed that the writ of execution was void because issued by a commissioner residing in another county. The case was tried before a jury, and a verdict rendered against Sullivan, the constable, Dana, the justice, and Belle Tompkins, for the sum of $ 3,000. The other defendants were found not guilty.

The first question presented is: Did Dana, the justice, in the absence of any motive or bad faith, exceed his jurisdiction, so as to become liable in damages, in issuing the warrant against plaintiff on the sworn complaint of defendant Sullivan, charging plaintiff with having resisted him in the service of the writ, and was the justice bound to know and decide at his peril, upon an inspection of the execution, and the hearing of the preliminary complaint in advance of the hearing upon the merits, that no offense had been committed by the defendants, and that the acts of the constable in the premises were illegal and void? In this Territory, justices of the peace are magistrates. Section 4836, Comp. Laws 1888. The offense charged was that of willfully resisting an officer. The justice had no jurisdiction to hear, try, and punish for this offense; he could only act as a committing magistrate. Comp. Laws 1888, §§ 3023, 4436. Our statutes require the magistrate to take testimony of witnesses tending to establish the commission of the offense and the guilt of the defendant, and that if the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue his warrant of arrest. Comp. Laws 1888, §§ 4838, 4839. The justice acted under this authority, and issued this warrant. Should he be held liable for a mistake in judgment? I think the justice had jurisdiction to hear the complaint, and issue the warrant. The offense charged was clearly within his jurisdiction as a committing magistrate, under which the statute made it his duty to issue a warrant of arrest if he was satisfied, from the complaint made, that an offense had been committed, and there was probable cause to believe the defendant committed it. As to the amount of evidence which the magistrate should require in order to authorize the issue of the warrant, no definite rule can be laid down. The rule that, where there is doubt as to the guilt of the accused, he is entitled to the benefit of it, does not apply in preliminary examinations. It is sufficient if the testimony shows, to the satisfaction of the magistrate, a probable cause of guilt on the part of the accused. Barb. Crim. Law, 522; 1 Chit. Crim. Law 33. If the evidence has a tendency to produce in the mind of the justice the belief of the probable guilt of the accused, and it does produce that belief, and he issues his warrant upon it, he cannot be said to have issued it without jurisdiction, though further evidence would have been more satisfactory or conclusive, or because he has drawn stronger inferences from it than he should have drawn. People v. Lynch, 29 Mich. 274. Nor is it to be understood that a magistrate would be liable for issuing a warrant if the facts are not established by the best testimony. He must exercise his judgment in the case; the judgment of no one else will do; and he is not, and should not be held, liable for a mere error in judgment, when he acts honestly, and within the scope of his authority. When the justice has observed the preliminaries necessary to obtain jurisdiction, and has the right to adjudicate upon the question as to the propriety of issuing the warrant, no mere error of opinion or judgment will render him liable. He is bound to decide such cases, and, if probable cause is shown under the statute, he is bound to issue his warrant; and, unless he acts corruptly, it would be against both policy and justice if the law should allow him to be punished because he did not decide right. But it is claimed that the justice knew from the execution in the hands of the officer that such constable had no authority to serve the writ of restitution.

It appears from the testimony that the plaintiff's attorney examined this writ, and pronounced it regular, and advised the plaintiff to surrender possession. Is it fair to presume that a committing magistrate should be possessed of such knowledge as at once to be able to detect that irregularity in a legal process that had escaped the vigilance of an attorney at law who examined it for that purpose? The irregularity of this process was one of the questions to be tried, and the justice could not judicially know of any defects in the process until a hearing was had. In the case of Pratt v. Gardner, 2 Cush. 63, in an action against a justice for willfully and maliciously entertaining a false complaint, knowing it to be false, in which the action was held not maintainable, Chief Justice Shaw said that, "where the subject-matter and the person are within the jurisdiction of the justice, he is not bound at the peril of an action for damages or a personal controversy, to decide right in a matter of either law or fact, but to decide according to his own convictions." And as to whether the complaint was groundless, or was false or feigned, and the justice knew it, was the very question to be tried; and the justice could not judicially know the fact until a trial was had. His private knowledge would not prevent the complainant from having the questions tried. In Carter v. Dow, 16 Wis. 298, it is held that a justice of the peace is liable only where he fails to acquire jurisdiction, and not for mere errors of judgment. Busteed v. Parsons, 25 Amer. Rep. 688, and note. In Stewart v. Hawley, 21 Wend. 552, where a magistrate, on complaint for the violation of a statute for the observance of Sunday, issued a warrant, had the person complained of arrested, and imposed a fine upon him, it was held that the justice was not liable, although he misjudged as to the facts alleged being an "offense," within the meaning of the statute. In this case it was also held that the constable executing the warrant was not liable for trespass. Mills v. Collett, 6 Bing. 85; Ackerley v. Parkinson, 3 Maule & S. 411; Tompkins v. Sands, 8 Wend. 462; Erskine v. Hohnbach, 81 U.S. 613, 14 Wall. 613, 20 L.Ed. 745; Savacool v. Boughton, 5 Wend. 171; McCall v. Cohen, 42 Amer. Rep. 641; Horton v. Auchmoody, 7 Wend. 201; Yates v. Lansing, 5 Johns. 282; Supe v. Francis, 49 Mich. 266, 13 N.W. 584; Johnson v. Maxon, 23 Mich. 129; Von Latham v. Libby, 38 Barb. 339; Same v. Rowan, 17 Abb. Pr. 237; Wheaton v. Beecher, 49 Mich. 348, 13 N.W. 769. There is some conflict in the authorities, but I think, from weight of authorities bearing upon this subject, that the warrant of arrest was regular and legal on its face, that the justice had jurisdiction to issue it, and that he is not liable in this action because he may have given undue...