People v. Jarrett
| Decision Date | 31 October 1880 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, use, etc.,v.ELWOOD M. JARRETT. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge presiding. Opinion filed December 13, 1880.
This was an action of debt against appellee, Elwood M. Jarrett, a surety on the official bond of George W. Mitchell, police magistrate of the town of Lake, to recover damages for the sale of property under a judgment in attachment, rendered by said magistrate against Edward T. Martin for whose use the suit is brought. The court below sustained a demurrer to the declaration, and rendered judgment for costs against the plaintiff. The plaintiff brings the case to this court by appeal, and assigns for error the ruling of the court in sustaining the demurrer and rendering judgment against the plaintiff.
The declaration alleges, inter alia, the issuance of the writ of attachment, returnable on the 29th day of December, 1877, the seizure of Martin's goods thereon, and the return of the writ by the constable “not found as to the defendent, E. T. Martin;” that the defendant not appearing either in person or by attorney, the magistrate continued the cause until the 12th day of January, 1878, at 9 o'clock A. M.; that on said 12th day of January, at the hour of nine o'clock sharp, judgment was rendered by the magistrate for the plaintiff against said Martin for eighty-eight dollars and eighty-seven cents and costs, no personal service upon said Martin having been made, nor any return of such service by the officer, and said Martin not having appeared, either in person or by attorney; that on said 12th day of January, 1878, the said police magistrate issued an attachment order of sale, commanding the constable to sell the property attached, in pursuance of which order the property was sold on the 25th day of January, 1878, for the sum of one hundred and thirteen dollars and forty cents, which, less the amount of costs, was paid over to the plaintiff in attachment.
Mr. F. W. BECKER, for appellant; that the statute must be strictly pursued by the justice, cited Rev. Stat. Chap. 11, § 9; Crepps v. Durden, 1 Smith's Lead. Cas. 992; Johnson v. Baker, 38 Ill. 99; Mitchell v. Foster, 12 Ad. & E. 472; Campbell v. McCahan, 41 Ill. 46; Briggs v. Worhill, 10 Mass. 356; White v. Jones, 38 Ill. 160; VonKettler v. Johnson, 57 Ill. 109; Thomas v. Hinsdale 78 Ill. 259; Hull v. Blaisdell, 1 Scam. 332; Evans v. Pierce, 2 Scam. 468: Evans v. Bouton, 85 Ill. 579; Firebaugh v. Hall, 63 Ill. 81: Haywood v. Collins, 60 Ill. 328; Vairin v. Edmonson, 5 Gilm. 270; First Nat. Bank v. Beresford, 78 Ill. 391.
Mr. ALBERT H. VEEDER, for appellees; that no person is liable to a civil action for what he has done as an officer while acting within the limit of his jurisdiction, cited 2 Hilliard on Torts, Chap. 28, § 5; Deal v. Harris, 8 Md. 40; Burnham v. Stevens, 33 N. H. 247; VonKettler v. Johnson, 57 Ill. 109; Sagendorph v. Shult, 41 Barb. 102; Butler v. Potter, 17 Johns. 145; Flack v. Ankeny, Breese, 187; Lancaster v. Lane, 19 Ill. 242; Booth v. Rees, 26 Ill. 48; Outlaw v. Davis, 27 Ill. 466.
In attachment, when the ground required by statute has been laid for the issue of process, the jurisdiction of the court has attached: Drake on Attachment, Chap. 17, § 437; Booth v. Rees, 26 Ill. 48; Moore v. Mauck, 79 Ill. 391; Borders v. Murphy, 78 Ill. 81.
Unless the duty of the magistrate is purely ministerial, he cannot be made liable to an action for a mistake in the execution of his duty, unless malice be shown: Linford v. Fitzroy, 13 Q. B. 240; Bushnell's Case, 1 Mod. 184; Pike v. Carter, 10 Moore, 376.
The ordering of a continuance is a judicial act: Downing v. Herrick, 47 Me. 462; Wertheimer v. Howard, 30 Miss. 420; Linford v. Fitzroy, 13 Ad. & E. 240.
The statute conferring jurisdiction upon justices of the peace in attachment suits, provides that if the defendant has not been personally served, and no appearance be entered by him, the justice shall continue the case not less than fifteen days, and shall immediately prepare a notice to be posted up at three public places in the neighborhood of the justice, directed to the defendant, stating the fact that an attachment had been issued, and at whose instance, the amount claimed to be due, and the time and place of trial; and also stating that unless the defendant shall appear at the time and place fixed for trial, judgment will be entered by default, and the property attached ordered to be sold to satisfy the same. These notices are required to be posted by the constable at least ten days before the day set for trial. Section 10 of the act (Hurd's Stat. 154) provides that if notice shall not be given according to law, or for any other good cause, the justice may continue the suit from time to time, till proper notice shall have been given, or the cause is ready for trial. And section 11 provides that when notice shall be given as required by the act, the justice shall on the day set for trial of the cause, proceed to hear and determine the same as though the defendant had been personally served with process.
Justices of the peace are courts of inferior and limited jurisdiction, and can only act within the limits prescribed by the statute. As a justice of the peace is invested with jurisdiction in attachment proceedings only by virtue of the statute, the jurisdiction can be exercised only to the extent, and in the manner pointed out by the statute. It is a special authority conferred by the legislature upon a tribunal, otherwise having no power to...
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