Pogue v. Swink
| Decision Date | 14 November 1955 |
| Docket Number | No. 2,44378,Nos. 44377,s. 44377,2 |
| Citation | 365 Mo. 503,284 S.W.2d 868 |
| Parties | Felix POGUE, Appellant, v. J. O. SWINK, Respondent. Theodore HEFFRON, Appellant, v. J. O. SWINK, Respondent |
| Court | Missouri Supreme Court |
W. A. Brookshire, Columbia, for appellants.
Roberts & Roberts, Smith & Smith, Farmington, for respondent.
BARRETT, Commissioner.
In these consolidated actions Felix Pogue, the presiding judge of the County Court of St. Francois County, and Theodore Heffron, an associate judge of the county court, sought to recover a judgment for actual and punitive damages against J. O. Swink who was then the circuit judge of the Twenty-seventh Judicial Circuit which included St. Francois County. The record consists of the petitions and attached exhibits, which, necessarily, are explanatory of the petitions and of the facts and circumstances out of which the actions arose, and the defendant's motions to dismiss the actions for the stated reasons that the petitions show on their faces that the acts complained of were done and performed by the defendant while acting in his judicial capacity 'and within the sphere of his jurisdiction' and, therefore, the petitions failed to state causes of action against the defendant. The trial court sustained the motions, dismissed the petitions with prejudice, and the plaintiffs have appealed.
Briefly, these are the allegations and the facts and circumstances out of which the actions arose: On January 15, 1951, Judge Swink, apparently upon his own initiative, entered an order changing the salary of the deputy circuit clerk from $1,980 to $2,160 a year. The order was attested by the circuit clerk who certified that he had delivered a copy of the order to the clerk of the county court. On the 2nd day of February Judge Swink caused a citation to be served upon the appellants summoning them to appear 'before the Circuit Court of St. Francois County * * * at 9:30 A.M. on Monday, February 5th, 1951, then and there to show cause, if any you have, why you should not be punished for contempt of the Circuit Court of St. Francois County * * * for disobeying the order of January 15th, 1951, increasing the salary of Julia F. Presnell, Deputy Circuit Clerk of said County and State.' On the 5th day of February the judges of the county court filed a response to the citation, signed by their attorney, in which they stated that they were the qualified and acting judges of the county court and that they 'have acted in their official capacity at all times during the month of January, 1951' and that they had certified to the state auditor a salary of $1,980 instead of $2,160 for the deputy circuit clerk in their 'official capacity and for the financial welfare of the taxpayers of St. Francois County' in accordance with the orders in the offices of the county and circuit clerks appointing her on October 1, 1949. It was also alleged in the response that the order of Judge Swink 'shows on its face' that it was not authorized under the specifically noted statutes and it did not appear from the order that the increased salary was necessary or required. It is alleged in the petitions that the appellants appeared before Judge Swink in accordance with the citation and that 'in open court' he inquired of the appellants whether they intended to obey the order and upon their answering 'No,' ordered the sheriff to imprison them in the county jail for a period of twenty-four hours. It is alleged that the sheriff did imprison the plaintiffs, and, at the time, Judge Swink's order was oral but subsequently a record entry was made 'of the pretended judgment and a sentence' and that in making and entering 'such pretended judgment the defendant was acting without any jurisdiction of either the person of the plaintiff or the subject matter and was falsely usurping the functions and power of a Circuit Judge.' It is alleged in the petitions that the order of imprisonment was illegal 'for the reason that the court had no jurisdiction to issue said order or to adjudge the plaintiff(s) in contempt of court for the reason that the pretended order * * * changing the salary of said Julia F. Presnell, if effective, was only a ministerial act, and was, in no manner, judicial in character, and, if effective, gave only the right to said Deputy Circuit Clerk to collect by proper remedy any salary increase to which she might be entitled' and that the circuit court had no jurisdiction over the persons of the plaintiffs or the subject matter 'touching the purported order and the act of the defendant causing the plaintiff(s) to be imprisoned was illegal and void, and the imprisonment was illegal and false.' It was then alleged that the defendant's actions and conduct in imprisoning them was malicious and wilful. A second count in the petitions alleges that on the 6th day of February the defendant again commanded the plaintiffs to appear before him and upon their repeated refusal to obey the order increasing the deputy's salary, he again sentenced them to imprisonment for twenty-four hours. About two o'clock of that day the appellants, upon a writ of habeas corpus, were released from their imprisonment by the St. Louis Court of Appeals, Pogue v. Smallen, 238 S.W.2d 20, and these actions for damages followed shortly.
The appellants, recognizing the general rule of nonliability of a judicial officer, in a civil action, for his acts in his judicial capacity and within his jurisdiction, 22 Am.Jur., Sec. 52, p. 390; 30 Am.Jur., Secs. 40, 43, 45, pp. 752, 755, 758; 12 Am.Jur., Sec. 65, p. 433; annotations 13 A.L.R. 1344; 173 A.L.R. 802, seek to bring their actions within the exceptions to the general rule. Their theory of liability in general is stated in this language: 'These two suits are based upon the two acts of imprisonment and damages are sought for the reason that the defendant, although he was Judge of the 27th Judicial Circuit, in this matter had no jurisdiction of their the subject matter or the parties, and had usurped the power and function of a judge in finding the plaintiffs guilty of contempt and in sentencing them to imprisonment.' The petitions are given the titles 'False Imprisonment And Trespass' but in their brief and in their allegations the plaintiffs have commingled, without discrimination, the actions for false imprisonment, malicious prosecution and malicious abuse of process. Thompson v. Farmers' Exchange Bank, 333 Mo. 437, 454-454, 62 S.W.2d 803, 810. But the gist and basic theory of the actions is that Judge Swink acted entirely without jurisdiction, in any meaning of the term, and is, therefore, civilly liable in damages to the plaintiffs.
It is asserted that the Circuit Court of St. Francois County, in the person of Judge Swink, did not have jurisdiction of the persons of the appellants. But this assertion is not argued or elaborated upon unless the statements in their argument that 'These plaintiffs were illegally brought before the defendant' or are intended to mean that by reason of their enforced or illegally complelled appearances they did not voluntarily subject themselves to the court's jurisdiction and, therefore, there was in fact no jurisdiction of their persons. But, admittedly, 'the defendant was the duty appointed, legally qualified and acting Judge of the Circuit Court of St. Francois County, Missouri.' St. Francois County is a part of the Twenty-seventh Judicial Circuit, V.A.M.S. Secs. 478.073, 478.163, as a circuit court it is a court of record, V.A.M.S. Sec. 476.010, and it is a court of general jurisdiction, V.A.M.S. Sec. 478.070, invested with 'the judicial power of the state'. V.A.M.S. Const.Mo. Art. 5, Secs. 1, 14. The appellants together with their attorney, personally signed and filed, on the 5th day of February, the above noted response to the citation, no question was then raised as to the court's jurisdiction of their persons and they did appear in court, personally and with their attorney, and these unequivocal general appearances gave the court jurisdiction of their persons. Mahan v. Baile, 358 Mo. 625, 630-631, 216 S.W.2d 92, 93-94.
The appellants, to demonstrate that the court did not have jurisdiction of the subject matter, 83 C.J.S., page 555, urge that the subject matter was the deputy clerk's salary. On the other hand, to demonstrate jurisdiction, the respondent urges that the subject matter was contempt, and the circuit court being a court of record with general jurisdiction of necessity, had jurisdiction of the subject matter, namely contempt. V.A.M.S. Secs. 476.110, 476.130. The appellant county judges in support of their position urge that under the statutes relating to circuit clerks and their deputies the circuit judge's power and functions were not judicial but wholly ministerial. And, therefore, they argue, by analogy, that the rules of liability applicable to ministerial officers invested with some discretionary duty or some quasi-judicial function are applicable to the acts and conduct of Judge Swink. Illustrative of this class of cases, and a case which does not involve the conduct of a public officer, are Reed v. Conway, 20 Mo. 22, 23, Pike v. Megoun, 44 Mo. 491, and Albers v. Merchants' Exchange of St. Louis, 138 Mo. 140, 39 S.W. 473. By demonstrating that Judge Swink's actions with reference to the deputy clerk's salary were wholly ministerial the appellants seek to establish that he acted 'wholly without jurisdiction' and is therefore civilly liable to them in damages. Annotations 13 A.L.R. 1344, 1351; 173 A.L.R. 802, 808.
In part, the argument fails to precisely note the force and meaning of 'ministerial' and 'judicial' as applied to the duties and functions of a judge of a court of record. 'But this distinction drawn between judicial and...
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