People v. Bartels

• Citation: 138 Ill. 322,27 N.E. 1091
• Parties: PEOPLE, TO USE OF MUNSON, v. BARTELS et al.
• Decision Date: 15 June 1891
• Court: Supreme Court of Illinois

138 Ill. 322

27 N.E. 1091

PEOPLE, TO USE OF MUNSON,

v.BARTELS et al.

Supreme Court of Illinois.

June 15, 1891.

Error to appellate court, second district.

CRAIG and WILKIN, JJ., dissenting.

D. B. Snow, for plaintiff in error.

M. F. Moloney, for defendants in error.

MAGRUDER, J.

This is an action of debt, brought in the circuit court of La Salle county by the people, for the use of Cornelia A. Munson, against Arthur T. Bartels and his sureties upon the official bond of the said Bartels as clerk of the probate court of La Salle county. The defendants demurred to the declaration. The court sustained the demurrer, and rendered judgment against the plaintiff for costs. Plaintiff elected to abide by her declaration, and excepted to the ruling of the court. The appellate court has affirmed the judgment of the circuit court, and the case is brought up for review by writ of error from this court to the appellate court. The declaration consists of four counts. The first count alleges that Bartels was clerk of said court ‘from December 4, 1882, to December 4, 1886. That on the former date he executed his official bond, conditioned to ‘well and faithfully do and perform all the duties of said office.’ That on September 28, 1886, said Bartels assumed to take the acknowledgment of a mortgage of that date, purporting to be executed by one Alva B. Goodrich, a widower, of La Salle county, to George W. Ravens, of Ottawa, to secure a note for $2,500.00 of same date, payable to order of said Ravens upon land in that county. That Bartels attached his official certificate to said mortgage, as follows: ‘State of Illinois, county of La Salle-ss.: I, A. T. Bartels, clerk of the probate court in and for the county and state aforesaid, do hereby certify that Alva B. Goodrich, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged before me that he signed, sealed, and delivered the foregoing instrument as his free and voluntary act and deed for the uses and purposes therein set forth, including the release and waiver of the right of homestead. Given under my hand and official seal this twenty-eighth day of September, A. D. 1886. A. T. BARTELS, Clerk of the Probate Court. [Seal.]’ That the statements in said certificate were and are false and untrue. That said Goodrich at that date was not personally known to Bartels to be the same person whose name is subscribed to said mortgage, and did not appear before said Bartels in person, and acknowledge that he signed, sealed, and delivered said instrument. That the name of said Goodrich upon said note and mortgage was a forgery. That at that date a man named Alva B. Goodrich resided in said county, and owned the land described in the mortgage. That Ravens, for Goodrich, applied to plaintiff Munson for a loan of $2,500.00 and presented to her a correct abstract of title to said land. That plaintiff furnished to Ravens, for Goodrich, $2,500.00, and received from Ravens said note and mortgage, which were assigned to her. That plaintiff was not acquainted with Goodrich, or the person claiming to be Goodrich, and relied solely upon the certificate of said Bartels. That Alva B. Goodrich has filed his bill against Munson, Ravens, and one Catlin, and obtained a decree finding said note and mortgage to be forgeries, and null and void as to him, and canceling the same of record. That plaintiff has declared the note and mortgage due for non payment of interest according to its terms. That the person so forging Goodrich's name, and believed to be one Henry Boyd, is pecuniarly irresponsible, and beyond the jurisdiction of the court. That said Bartels did not well and faithfully do and perform all the duties of his office as such clerk, as required by law and the conditions of the bond, and plaintiff has been injured by his neglect and misconduct,' etc. The second count contains substantially the same allegations as the first, except that it avers that a person representing himself to be Alva B. Goodrich applied to plaintiff for the loan, and presented the abstract showing title in Goodrich, and the note and mortgage purporting to be executed by him, and to be acknowledged by Bartels, and having the certificate aforesaid attached thereto; that the statements in the certificate were false, and the name of Goodrich forged; that Ravens, as agent of the person claiming to be Goodrich, gave plaintiff the note and mortgage, and she paid over the $2,500 relying upon said certificate, etc. The third count is substantially the same as the second, and further avers that the name of Goodrich appearing on said note and mortgage is and was a forgery, and the said certificate ‘is and was, to the full knowledge of said Bartels, false and fraudulent;’ that the land is of the value of $10,000; that no part of the interest or principal of the money so loaned has been paid; that the person so forging, etc., was, and has ever since been, insolvent, and beyond the jurisdiction of the court. This count omits the averments as to the filing of the bill, and the rendition of the decree canceling the mortgage, and avers that Bartels, as such clerk, certified upon the mortgage that Goodrich was personally known to him to be the same person whose name is subscribed, ect., and that said Goodrich appeared before him in person, and acknowledged said mortgage, etc. The facts so certified to are then denied, etc. The fourth count is substantially the same as the third, and avers that Goodrich was not personally known to Bartels, and not personally known to be the same person whose name was subscribed, etc., and did not appear, etc., and acknowledge, etc., and that the name of Goodrich was a forgery, and the certificate of Bartels false and fraudulent, etc. This count, like the third, does not set out the proceedings and decree under the bill filed to set the mortgage aside.

The main question to be determined in this case is whether the clerk of the probate court performed a judicial act or a ministerial act in taking the acknowledgment. A judicial officer will not be held liable for an act done by him in the exercise of his judicial functions if the act is within the scope of his jurisdiction. Official action is judicial where it is the result of judgment of discretion. When the officer has the authority to hear and determine the rights of person or property, or the propriety of doing an act, he is vested with judicial power. An officer will be regarded as being clothed with judicial or quasi judicial functions when the powers confided to him are so far discretionary that he can exercise or withhold them according to his own judgment as to what is necessary and proper. Where the question is one of opinion merely, whether as to the value of property, or as to the weight to be given to evidence legally admitted, the discretion exercised cannot be disputed. But where the duty imposed on an officer is purely ministerial, he will be held liable for any injury to another which results from his failure to perform it, or from his performance of it in a negligent or unskillful manner. Official duty is ministerial when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action is ministerial when it is the result of performing a certain and specific duty, arisingfrom fixed and designated facts. The same officer may be charged with the performance of both judicial and ministerial duties, and, when he is in the exercise of his ministerial functions only, he is, of course, not protected by the judicial privilege. Grider v. Tally, 77 Ala. 422; Wall v. Trumbull, 16 Mich. 228;Owners of Lands v. People, 113 Ill. 296. It is difficult to see how the act of taking such an acknowledgment as was taken by the clerk of the probate court in this case can be regarded as in any sense judicial in its character. The clerk certified that he performed a certain and specific duty arising from fixed and designated facts, and therefore his act was purely ministerial. The twenty-fourth section of our conveyance act provides that the party must be personally known to the officer taking the acknowledgment, or shall be proved to be such by a credible witness, and he must state in his certificate that such party was personally known to him to be the person whose name is subscribed to the writing, or that he was proved to be such by a credible witness. If the clerk had stated in his certificate that Goodrich had been proved to be the person subscribing the deed by a credible witness, then it might be said that the clerk had performed a judicial function in determining from evidence that Goodrich was the person signing the deed, and that he should not be held liable if he made a mistake and drew a wrong conclusion from such evidence. But the personal knowledge required by the statute is not attained as the result of weighing evidence. That this is so is apparent from the fact that the statute expressly distinguishes between personal knowledge and knowledge acquired by the testimony of a witness. So, in certifying that Goodrich acknowledged that he signed, sealed, and delivered the deed as his free and voluntary act, the clerk did not certify to any conclusion from facts, but simply certified to the fact of Goodrich having acknowledged or admitted a certain thing to be true. The sheriff determines whether process is issued by the proper court, and regular on its face, but his execution of the process has never been regarded otherwise than as a ministerial act. The public treasurer must ascertain that a warrant is properly drawn before he pays it, but his payment of it is a ministerial act. It was said in Grider v. Tally, supra: ‘That a...