Moser v. Summers

• Citation: 189 S.W. 715,172 Ky. 553
• Parties: MOSER v. SUMMERS ET AL.
• Decision Date: 05 December 1916
• Court: Court of Appeals of Kentucky

189 S.W. 715

172 Ky. 553

MOSER v. SUMMERS ET AL.

Court of Appeals of Kentucky.

December 5, 1916

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Joseph L. Moser against Louis Summers, as Clerk of the Jefferson Circuit Court, and the American Bonding Company of Baltimore, as his surety, and against Ben Schulman, Justice of the Peace for Jefferson County, and L. H. Roberts Constable for that County, and the Chicago Bonding & Surety Company of Illinois, as their surety. Demurrer to petition sustained, and plaintiff appeals. Affirmed.

M. N Webster, of Belmont, for appellant.

Fred Forcht, of Louisville, for appellees Summers and American Bonding Co., of Baltimore.

Chas. Wickliffe, of Louisville, for other appellees.

MILLER C.J.

In 1913 Lorena Frye sued the appellant, Joseph L. Moser, in the Jefferson circuit court for damages. Upon a trial of that case the jury found for the defendant, Moser; whereupon he took judgment for his costs, amounting to $13.45. At that time Louis Summers, one of the defendants to this action, was clerk of the Jefferson circuit court.

Summers, as clerk, made out a fee bill as required by law, and presented it to Moser for payment, and upon Moser's refusal to pay Summers, as clerk, instituted a suit thereon in the court of Ben Schulman, a justice of the peace for Jefferson county. Process was issued and served upon Moser, who appeared by counsel and objected to the jurisdiction of the court. His objections were overruled, and upon the trial judgment went against Moser for $13.45, with the costs of the action in Schulman's court. An execution was duly issued from justice Schulman's court and levied upon a delivery wagon belonging to Moser, which was sold for $4 by L. H. Roberts, a constable for Jefferson county.

As the sale of the wagon did not satisfy the execution, a second levy was made upon a cash register, 20 cases of whisky, and some other articles of personalty, which were sold at public auction in satisfaction of the unpaid portion of the judgment. Moser was the purchaser at both sales.

Subsequently, however, Moser instituted this action against Summers, as clerk, and the American Bonding Company of Baltimore as his surety, against Schulman, as justice of the peace, and the Chicago Bonding & Surety Company of Illinois, his surety, and L. H. Roberts, as constable, and the Chicago Bonding & Surety Company of Illinois, his surety, to recover $20,019.35 damages for the alleged illegal sale of his property, above described. The petition alleges that Summers instituted the action in Schulman's court maliciously and without probable cause, and in collusion with Schulman and Roberts; that the fee bill was illegal, exorbitant, and oppressive, and that the action was instituted by Summers for the purpose of intimidation, and to injure Moser in his business, good name, fame, and credit; that Roberts, the constable levied upon the things that were most useful to Moser in his business, for the purpose of causing him trouble and annoyance; and that Summers, Schulman, and Roberts entered into an unlawful combination to wrong, oppress, and injure Moser. The circuit court sustained a demurrer to the petition, and Moser appeals.

Appellant contends that he was not liable to Summers for any costs whatever in the Frye suit, because, as defendant in that action, he obtained a judgment for his costs. This contention is based upon the theory that, where a defendant obtains a judgment for his costs in an action against him he is not liable to the clerk for his own clerk's costs in that action. This however is an erroneous view of the extent of his liability.

While section 889 of the Kentucky Statutes provides that the party succeeding in an ordinary action, on the merits or otherwise, "shall recover his costs," this does not mean that he is not liable to the officers of the court for the costs incurred by himself. For these costs he is directly liable to the clerk, although under his judgment for costs he may collect them from his opponent. That right, however, does not relieve him of his liability to the clerk for his own costs, and that was all that Summers claimed. There is no claim that the fee bill contained any improper items of charges; the only contention is that Moser was not responsible to Summers therefor.

Under section 1751 of the Kentucky Statutes, the clerk might have collected his bill by a distress warrant. The question of the clerk's right to sue for his bill, while his right to proceed by distress warrant still existed, has not been raised and is not decided.

As to the liability of Schulman, the justice who tried the case, the general rule is that no person is liable civilly for what he may do as judge, while acting within the limits of his jurisdiction.

In Rammage v. Kendall, 168 Ky. 31, 181 S.W. 634, L.R.A. 1916C, 1295, the rule was stated as follows:

"There is a general principle of universal application to all grades of judicial officers that a judge who is proceeding within the scope of his jurisdiction is not liable in an action for damages for the opinion he may deliver as such judge, nor for any rule or action he may take for the conduct of the business of his court. This principle, however, does not extend to make a judicial officer immune from damages for illegal acts, which result in injuries to others or deprive them of their legal rights, when his acts are without the scope and limits of his jurisdiction. It follows that, if his illegal acts are without the scope and limits of his jurisdiction, he is liable if damages result to others from such acts, whether he is actuated by malice, corrupt and impure motives, or not. In the last state of case the fact that his motives are impure and bad are considered only as aggravating the damages. When the judge acts illegally, without the limits of his jurisdiction, he becomes a trespasser, and is liable in damages as such. Morgan v. Dudley, 18 B. Mon. 693 ; Revill v. Pettit, 3 Metc. 314; Kennedy v. Terrill, Hardin, 491; Ayars v. Cox, 10 Bush, 207; Hollon v. Lilly, 100 Ky. 559 [38 S.W. 878, 18 Ky. Law Rep. 968]; Pepper v. Mayes, 81 Ky. 674; Ely v. Thompson, 3 A. K. Marsh. 70; Gregory v. Brown, 4 Bibb. 28 ; Tabb v. Mudd, 6 Ky. Law Rep. 220; Reed v. Taylor , 25 Ky. Law Rep. 1793; Stephens v. Wilson, 115 Ky. 27 [72 S.W. 336, 24 Ky. Law Rep. 1832]; Scott v. West, 1 Bush, 23; Blincoe v.

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