Perry v. Meikle, 14637

• Decision Date: 05 March 1951
• Docket Number: No. 14637,14637
• Citation: 228 P.2d 17,102 Cal.App.2d 602
• Parties: PERRY v. MEIKLE et al. Civ.
• Court: California Court of Appeals Court of Appeals

Page 17

228 P.2d 17

102 Cal.App.2d 602

PERRY v. MEIKLE et al.

Civ. No. 14637.

District Court of Appeal, First District, Division 2, California.

March 5, 1951.

John P. Doran San Francisco, for appellant.

Aaron Sapiro, Allan L. Sapiro, San Francisco, for respondents, Theresa Meikle, Milton D. Sapiro, Twain Michelsen and Mary K. Maloney.

Frank J. Perry, John F. O'Sullivan, San Francisco, for respondent, Frank J. Perry.

A. P. O'Neill, San Francisco, for respondents, Joseph E. Perry and A. P. O'Neill.

SCHOTTKY, Justice Pro Tem.

Plaintiff commenced and action naming as defendants Theresa Meikle, Milton D. Sapiro, Twain Michelsen, Joseph E. Perry, Frank J. Perry, A. P. O'Neil and Mary K. Maloney.

The complaint first alleges that the defendants (not naming any of them except in the title) conspired, etc., and through their conspiracy, etc., together, did commit trespass against plaintiff by falsely imprisoning her and causing her to be imprisoned in the county jail of the City and County of San Francisco for a period of six hours on April 29, 1949. The complaint proceeds to allege that the common purpose of said conspirators was to humiliate, oppress and degrade plaintiff and the means used was the manipulation and abuse of the processes of the courts. The complaint then alleges that said false imprisonment consisted in and was constituted of certain facts, and we shall give the substance of such allegations. That plaintiff appeared before defendant Twain Michelsen on April 22, 1949, in compliance with an order to show cause, a copy of which is annexed to the complaint, which order to show cause was based upon the affidavit of defendant Joseph E. Perry, a copy of said affidavit being annexed to the complaint. That plaintiff appeared before defendant Twain Michelsen on April 22 in response to said order to show and an answer which she had filed on April 19th was read into the record by defendant Twain Michelsen, a copy of said answer being annexed to the complaint. That on April 25, 1949, defendant A. P. O'Neil, accompanied by defendant Joseph E. Perry appeared before defendant Twain Michelsen pursuant to an order theretofore issued by him and plaintiff was present. That at that time and place defendant Twain Michelsen ordered plaintiff to bring her minor child Yvonne into his courtroom on April 29, 1949. That said plaintiff appeared in said courtroom on April 29th and defendant Joseph E. Perry and his counsel, defendant A. P. O'Neil, were also present. That defendant Twain Michelsen asked plaintiff if she had complied with the court's order, and, upon being informed by her that she had not, he adjudged her in contempt of court, remanded her to the custody of the sheriff and told her she would remain in custody until she complied with the court's order. That then defendant A. P. O'Neil typed an order of commitment which was signed by the defendant Twain Michelsen, and that plaintiff was then taken in the sheriff's wagon to the county jail in the Hall of Justice and remained incarcerated there until released on a writ issued by the District Court of Appeal.

The only defendants whose names are mentioned in the body of the complaint are Twain Michelsen, Joseph E. Perry and A. P. O'Neil. There is nothing whatever in the complaint to indicate how or in what manner any of the other defendants participated in or instigated the legal proceedings referred to in the complaint. It appears from the record that there was a divorce action between Joseph E. Perry and plaintiff and that plaintiff was found to be in contempt to court for not delivering up the minor child to Joseph E. Perry as provided in the order modifying the Interlocutory Decree. It is not even alleged that Twain Michelsen was a judge of the superior court although this is apparent from the proceedings. It is conceded in appellant's brief, but not alleged in plaintiff's complaint, that defendants Theresa Meikle and Milton D. Sapiro were and are judges of the superior court, but even without this concession we may take judicial notice of that fact. It is also conceded in appellant's brief that defendant Mary K. Maloney is a probation officer, and the trial judge was of course entitled to take judicial notice of that fact. We are also entitled to take judicial notice of the fact that the writ of habeas corpus issued by the District Court of Appeal, upon which plaintiff was released, was later discharged, the court stating: 'It appearing to the court that the trial court had jurisdiction of the person and the subject matter, and that a valid commitment had been issued, it is the order of the court that the writ of habeas corpus be discharged and the prisoner is remanded to custody.' Ex parte Perry, 91 Cal.App.2d 677, 206 P.2d 652, 653.

Five demurrers to the complaint were filed: 1. A general demurrer by defendant Michelsen; 2. A general demurrer by defendants Meikle, Sapiro and Maloney; 3. A general and special demurrer by defendant Joseph E. Perry; 4. A general demurrer by defendant A. P. O'Neil; 5. A general and special demurrer by defendant Frank J. Perry. The court sustained the first 3 demurrers without leave to amend and sustained the last two with leave to amend, the plaintiff declining to amend. From the judgments entered the favor of defendants after the sustaining of said demurrers, the plaintiff has appealed.

Notwithstanding the apparent effort of plaintiff to keep from alleging that defendant Twain Michelsen was a judge of the superior court and was acting as such in the proceeding complained of, it is clear from the complaint and the exhibits that Judge Michelsen was acting as superior judge in a matter over which he had jurisdiction, that the proceeding was regular in all respects, and that there would be no basis for any action against him, even if he were not entitled to immunity from civil liability under the well-established and sound rule of public policy so well expressed by Justice Brewer of the U. S. Supreme Court, sitting as a Circuit Justice, in Cooke v. Bangs, C.C., 31 F. 640, 642, as follows: 'With respect to all judicial officers,--justices of the peace, as well as judges of the higher courts,--the settled law of the supreme court of the United States, and I think the plain intimation of the supreme court of this state, is that, where they act within their jurisdiction, they are not amendable to any...