Mccall v. Cohen

• Citation: 16 S.C. 445
• Decision Date: 18 February 1882
• Docket Number: CASE No. 1141.
• Court: United States State Supreme Court of South Carolina
• Parties: MCCALL v. COHEN.

16 S.C. 445

MCCALL

v.COHEN.

CASE No. 1141.

Supreme Court of South Carolina.

Feb. 18th, 1882.

1. An order dismissing the complaint, passed at the proper stage of a trial, is not erroneous because that no motion for dismissal was made by defendants.

2. A non-suit should not be granted in invitum where there is any evidence to go to the jury; but where, in action for damages for proceedings under a void judgment of a trial justice, there is no evidence that the trial justice acted willfully or corruptly, or that the plaintiffs willfully procured or oppressively enforced the illegal judgment, the complaint was properly dismissed by the order of the judge.

3. The judge of an inferior court is not liable in damages for an injury resulting to a party by reason of an error of judgment committed by such officer in the discharge of his duty, where the subject-matter was within his jurisdiction-except, possibly, upon proof of a willful and corrupt motive.

4. The rule is the same where his error of judgment was as to his jurisdiction of the persons of the defendants, in a case wherein he had undoubted jurisdiction of the subject-matter. The distinction between no jurisdiction and excess of jurisdiction declared in Bradley v. Fisher, 13 Wall. 335, approved.

Before PRESSLEY, J., Darlington, April, 1881.

Action commenced in July, 1880, by L. A. McCall against D. D. Cohen and the other parties named in the opinion as defendants, and also against G. W. Brown. The opinion fully states the case.

Mr. B. O. Townsend, for appellant.

The opinion of the court was delivered by

MCGOWAN, A. J.

This was an action to recover damages for a levy on property under a void judgment. The defendant, M. A. Huggins, being a trial justice, rendered, May 29th, 1877, a judgment in favor of Hart & Co.-namely, N. S. Hart, D. D. Cohen, P. Moran, John V. McNamee and McDuff Cohen-against McCall & Co.-namely, Stephen McCall and L. A. McCall. Under the execution issued in the case, a mule, the property of L. A. McCall, was levied on and detained some time. Afterwards the judgment was set aside, and said McCall brought this action for damages against the trial justice, who rendered the judgment, and the creditors, plaintiffs in that action. When the case was called, it was announced that two of the defendants, D. D. Cohen and John V. McNamee, had not been served, and the plaintiff was allowed to proceed against the other defendants.

It appeared that Hart & Co., merchants of Charleston, sent to R. K. Charles, Esq., an account against McCall & Co. for $14.57, to be collected. Mr. Charles placed the account in the hands of Trial Justice Huggins for suit, and, without further instructions from them, took such steps for the collection as he thought best. Huggins sued on the account. The summons was returned served by one Calvin Josey, acting constable, but who, as it appeared, was not a regular constable, and had no special appointment in the case. When McCall received the summons, and before the day of trial, he enclosed to Huggins the amount of the account, $14.57, without interest or costs. Huggins received the money, but, concluding that there was interest due at twelve per cent. and costs, he credited the amount received and gave judgment for $10, “balance of debt and costs.”

Upon this judgment execution was issued, which was taken from the officer sent to levy it. Another execution was issued, whereupon the plaintiff here, McCall, made a motion before the trial justice to set aside the judgment, upon the ground that he had not been made a party by proper process. On that ground the motion was refused, but granted unless the plaintiffs would remit all interest over seven per cent., which was done, and the judgment reduced to $6.93. The execution was then placed in the hands of the sheriff by Mr. Charles, attorney for Hart & Co., with instructions to notify McCall, his object being, as he testified, “to work him up to a settlement.” G. W. Brown, deputy sheriff, levied the execution on a mule belonging to L. A. McCall. The sheriff offered to return the mule, but McCall declined to take him. After some six weeks the mule was returned in bad condition, and soon after died.

L. A. McCall applied for a writ of certiorari to set aside the judgment, which Mr. Charles resisted. Judge Wallace, March 12th, 1879, granted the prayer, ordering “that the judgment and execution mentioned in the petition be set aside and canceled, and, also, that Hart & Co. pay the costs of this proceeding, together with $10 costs of this motion.” From this order there was an appeal, and this court affirmed the order. State, ex rel. McCall, v. Cohen, 13 S. C. 198.

When the testimony in this case closed, Judge Pressley required argument on the part of the plaintiff as to whether there was any evidence to go to the jnry, and, being of opinion there was none, directed Mr. Charles, defendants' attorney, to draw up, for his signature, the following order: “There being no evidence to go to the jury to connect D. D. Cohen, P. Moran, John V. McNamee, N. S. Hart, McDuff Cohen and M. A. Huggins with the trespass set forth in the complaint, it is ordered that as to them the action be dismissed.”

The plaintiff appeals from this order upon the following grounds:

1. “Though action had been commenced against the defendants, D. D. Cohen and John V. McNamee, by delivery of the summons to the sheriff for service, yet they, not having been served therewith, were not before the court, and the plaintiff should have been allowed further time to effect service upon them, and the case should only have been heard, and any decision related only to the defendants actually served with the summons.

2. “The order was made on the motion of the court itself.

3. “There was evidence to go to the jury to connect the defendants, known as Hart & Co., with the trespass set forth in the complaint.

4. “There was evidence to go to the jury to connect M. A. Huggins with the trespass set forth in the complaint, and from which they could infer his willful, knowing, malicious and corrupt intention and animus.

5. “The order was otherwise erroneous.”

No argument was submitted in this court for the respondents, and we have had to make such hasty examination as the press of business would allow. There is nothing in the order having been prepared at the instance of the judge himself. It was not, as in the case of the State v. Parker, 7 S. C. 235, “without notice to the party prejudiced by it,” but in the midst of the trial and in the presence of all parties. We consider the matter precisely as if the motion had been made by Mr. Charles, attorney for the defendants. We cannot assume that he was opposed to entering an order in favor of his clients.

The rule certainly is that a non-suit upon the facts should not be granted when there is any evidence to go to the jury, whose exclusive province it is to decide upon the weight of conflicting testimony. As was said in the case of Redding v. South Carolina Railroad Company, 3 S. C. 9, “where there has been a total failure of testimony, as in Brown v. Frost, 2 Bay 126, and Hopkins v. DeGraffenreid, Id. 441, there was nothing to leave to the jury, and it was the duty of the judge to non-suit; but, as it is said in Rodgers v. Madden, 2 Bail. 321, the practice of ordering a non-suit in invitum for defective testimony is to be pursued with caution.” Holley v. Walker, 7 S. C. 144. It is the province of the judge to decide all questions of law, and in this case there was a mixed question of both law and fact.

Trial Justice Huggins was a judicial officer, and in the course of his official duties he rendered a judgment which, as it afterwards appeared, was void for the want of proper service of the parties. One of the questions was whether, as matter of law, he was responsible for the consequences. Upon that point there can be no doubt. It is as well settled as any legal proposition can be that a judicial officer is not liable in damages for an injury which may come to a party by reason of an error of judgment committed in the discharge of his duty where the subject-matter is within his jurisdiction. Without going into the long list of authorities in support of this proposition, extending back at least to the time of...