Osbekoff v. Mallory, 54329

• Decision Date: 17 June 1971
• Docket Number: No. 54329,54329
• Citation: 188 N.W.2d 294
• Parties: Joseph OSBEKOFF, Appellant, v. James MALLORY, Individually and as Mayor of the Town of LuVerne, and The Incorporated Town of LuVerne, Kossuth County, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 294

188 N.W.2d 294

64 A.L.R.3d 1242

Joseph OSBEKOFF, Appellant, v. James MALLORY, Individually and as Mayor of the Town of LuVerne, and The Incorporated Town of LuVerne, Kossuth County, Iowa, Appellees.

No. 54329.

Supreme Court of Iowa.

June 17, 1971.

H. A. Stoebe, Humboldt, for appellant.

Hutchison, Buchanan, Andreasen & McClure, Algona, for James Mallory, individually, appellee.

Kersten & Opheim, Fort Dodge, for Incorporated Town of LuVerne, and James Mallory as Mayor of Town of LuVerne, appellee.

MASON, Justice.

Joseph Osbekoff appeals from the trial court's ruling sustaining defendants' motion to dismiss his petition. Plaintiff instituted a law action against James Mallory individually and as mayor of the town of LuVern and the incorporated town of LuVerne, stemming from certain alleged illegal acts of defendant Mallory July 5, 1969 while acting as magistrate in mayor's court in his official capacity as mayor of LuVerne.

In one division of his petition plaintiff seeks recovery on the theory Mallory, acting individually and purporting to act in his official capacity as mayor of LuVerne, wrongfully and maliciously committed oppression by taking possession of plaintiff's Pontiac Firebird automobile contrary to sections 740.3 and 714.1, Code, 1966. In a separate division he asks damages for conversion of his automobile by Mallory and by amendment in a third division he alleges as a ground for recovery abuse of process by oppression in public office in using the criminal process to collect a civil debt and in delivering his vehicle to a third person without plaintiff's consent.

Mallory individually filed motion to dismiss on the ground plaintiff had failed to plead facts upon which relief requested could be granted. After amendment to the petition defendants amended the previous motion on behalf of Mallory as mayor of LuVerne and the town of LuVerne and Mallory individually, incorporating therein all grounds urged in the original motion. As an additional ground defendants allege in the amended motion plaintiff's action seeks to recover damages against Mallory individually for action taken by him while he was acting judicially and within the sphere of his jurisdiction as mayor of LuVerne; that such action is within the immunity granted to courts and defendant is not liable in a civil action.

Defendants rely on Huendling v. Jensen, 168 N.W.2d 745 (Iowa 1969), in support of the amended motion.

The court in sustaining defendants' motion stated:

'For the purposes of defendants' motion to dismiss the court considers it conceded that as magistrate he had the right only to impose sentence by way of fine or jail confinement after plaintiff's plea of guilty; that his act in suspension thereof upon certain terms and conditions amounting to an attempt to collect a civil debt by the use of process was illegal and an abuse of process of the court; that said abuse of process was maliciously and knowingly done by defendant Mallory.

'* * *.

'It appears to be the present law of this state that judicial immunity is extended to courts of limited jurisdictions, which includes mayor's court; that a mayor, when acting judicially and within the sphere of his jurisdiction, is not liable in a civil action for any error he may commit, even though he acts from impure or corrupt motives and exceeds his jurisdiction. If no liability attaches to defendant Mallory in either his individual or official capacity, then no liability attaches to the defendant town of LuVerne.'

The statutes referred to in plaintiff's petition provide:

'740.3 Oppression in official capacity. If any judge or other officer, by color of his office, willfully and maliciously oppress any person under pretense of acting in his official capacity, he shall be fined not exceeding one thousand dollars, and imprisoned in the county jail not more than one year, and be liable to the injured party for any damage sustained by him in consequence thereof.'

'714.1 Malicious injury to buildings and fixtures. If any person maliciously injure, deface, or destroy any building or fixture attached thereto, or willfully and maliciously destroy, injure, or secrete any goods, chattels, or valuable papers of another, he shall be imprisoned in the penitentiary not more than five years, or shall be imprisoned in the county jail not more than one year, or be fined not exceeding five hundred dollars, and be liable to the party injured in a sum equal to three times the value of the property so destroyed or injured.'

In five assignments of error plaintiff urges various grounds in attacking the court's ruling sustaining defendants' motion to dismiss. One assignment is directed to the ruling as to division I, one as to the ruling on division II, two as to the ruling on division III, and in the remaining assignment plaintiff directs a separate and distinct attack at the court's ruling as to divisions I and III.

I. At one point in argument plaintiff maintains division III of his petition was added by amendment after the discovery depositions of plaintiff and Mallory were taken. He says these depositions are the basis for the cause of action asserted in this division and that therefore the depositions should be examined by the court 'for elucidation.' Although defendants concur in the request, they express doubt as to the propriety of our doing so contending that only matters appearing in the pleading assailed are to be considered. They cite in support Harrison v. Allied Mutual Casualty Co., 253 Iowa 728, 730, 113 N.W.2d 701, 702 and Winneshiek Mutual Ins. Assn. v. Roach, 257 Iowa 354, 365, 132 N.W.2d 436, 443.

In the cited cases and in many later decisions this court has said, under our procedure a motion to dismiss is the successor to the demurrer and must be based upon matters urged in the pleading assailed, admitting their truth for purpose of testing their legal sufficiency. Facts not so appearing, except those of which judicial notice may be taken, must be ignored. The motion may not sustain itself by its own allegations of fact not appearing in the challenged pleading. In addition to the authorities collected in the two cited opinions see Hagenson v. United Telephone Company, 164 N.W.2d 853, 855 (Iowa 1969) and Ke-Wash Company v. Stauffer Chemical Company, 177 N.W.2d 5, 8--9 (Iowa 1970).

However, in the present case plaintiff is urging that we examine extraneous facts to support his petition when its sufficiency is questioned by defendants' motion. A motion to dismiss is directed to the pleadings as they stand. Except those facts of which judicial notice may be taken, the pleadings cannot be aided by evidence when subjected to a motion to dismiss for failure to state a claim on which any relief can be granted. See Kester v. Travelers Indemnity Co., 257 Iowa 1146, 1151, 136 N.W.2d 261, 264. We decline to accept plaintiff's invitation and consider validity of the court's ruling in light of the principle just stated.

We summarize the allegations of plaintiff's petition and the parties' contentions.

The court relied on Huendling v. Jensen, 168 N.W.2d 745 (Iowa 1969), in dismissing the petition, being of the opinion the doctrine of judicial immunity is to be extended to courts of limited jurisdictions including mayor's court.

II. In division I of his petition plaintiff alleged his automobile was involved in an accident in LuVerne while being operated by John Dana Selby; defendant Mallory, purporting to act in his official capacity and under cloak of authority, took possession of plaintiff's vehicle and retained the same even after plaintiff, through his agents, had made demand therefor on Mallory. Osbekoff further alleged Mallory's conduct constituted oppression in official capacity as described in section 740.3 and asked exemplary damages as authorized in section 714.1 because of the mayor's willful and malicious retention of the vehicle.

It must be acknowledged section 740.3 provides for criminal culpability and damages to a party injured by a judge or other officer who, by color of his office, willfully and maliciously oppresses any person under pretense of acting in his official capacity.

Plaintiff argues the court erred in refusing to recognize the existence and applicability of the statutory provision of 'oppression in public office' since there is no exclusion or exemption for judicial officers under the terms of this section. He maintains the mayor as a minor magistrate had acquired no jurisdiction of plaintiff's property not on his person, there being no case pending before the court involving this plaintiff's property or property rights. Therefore, Mallory was without jurisdiction and not acting within the scope of judicial immunity from damages.

Sectin 714.1 prohibits maliciously secreting the chattels of another.

Although conceding it might be logically argued the mayor acted improperly or from corrupt motives and in excess of his jurisdiction, defendants contend the doctrine of judicial immunity must operate to bar damages for the alleged oppression in office.

In division II plaintiff seeks damages alleging his automobile had been converted by Mallory while purporting to act in his official capacity as mayor of LuVerne either to Mallory's own use or to the use of the town of LuVerne. Defendants assert as the ground for their motion to dismiss this division that the allegations of plaintiff's petition specifically relate to actions taken by Mallory while acting in his official capacity as mayor. The trial court appears to have accepted this view in its...