Root v. Rose
| Decision Date | 18 October 1897 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County; Glaspell, J.
Action by Herbert Root against Roderick Rose, Herman Winterer, E. H Briggs, and Herman O. Sterl. Judgment for defendants upon their demurrer to the complaint dismissing plaintiff's action. Plaintiff appeals.
Affirmed.
Herbert Root, for appellant.
The complaint avers a conspiracy to unlawfully vex, annoy persecute and damage plaintiff in his person and property. This is an actionable wrong. Stewart v. Cooley, 23 Minn. 347. This court has held that defendants' acts were not "due process of law." State v. Root, 5 N.D. 487, 67 N.W. 590. Judges are liable for civil damages when acting without jurisdiction of the subject-matter. Bradley v. Fisher, 13 Wall. 335; Lange v Benedict, 73 N.Y. 12; McCall v. Cohen, 16 S.C 444; Busteed v. Parsons, 54 Ala. 393, 12 A. & E. Enc. L. 33; Calder v. Halkett, 3 Moore's Privy Coun. Cas. 73; 1 Addison on Torts, § 697 pg. 651; 3 Lawson R. R. & Pr. 1841, § 1075; Bigelow on Torts 125; Jaggard on Torts 123. The officers who enforced the void order are also liable. Bigelow v. Stearns, 19 Johns 39; Savacal v. Boughton, 5 Wend. 172; Com. v. Martin, 105 Mass. 178; Vredenburgh v. Hendricks, 17 Barb. 183, 22 A. & E. Enc. L. 531; Batchelder v. Currier, 45 N.H. 460.
Roderick Rose, and Winterer & Winterer for respondent.
The District Court had jurisdiction of the subject-matter of contempts. Section 5112, 5222, 5251, 5174, 5185, 7200, and 7850, Comp. Laws. Also over the subject-matter of the disbarment of attorneys. Sections 472, 477, Comp. Laws. Jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action. Hunt v. Hunt, 72 N.Y. 217; Cooper v. Reynolds, 10 Wall. 308; Mechem on Public Officers 625; 1 Beach Eq. Pr. 13; Cooley Const. Lim. 499. The defendant Rose cannot be held liable in damages for an act done by him as judge, however erroneous the act may have been. Bradley v. Fisher, 13 Wall. 335; Yates v. Lansing, 5 Johns 291; Lang v. Benedict, 73 N.Y. 12; Cooke v. Bangs, 31 F. 640; Stewart v. Cooley, 23 Minn. 347; Terry v. Wright, 47 P. 905; Busted v. Parsons, 25 Am. Rep. 688; Austin v. Vrooman, 28 N.E. 477; State v. Wolever, 26 N.E. 762; Rains v. Simpson, 32 Am. Rep. 609; Hughes v. McCoy, 19 P. 674; Irwin v. Lewis, 56 Ala. 190; Kress v. State, 65 Ind. 106; Turpen v. Booth, 56 Cal. 65; Weaver v. Devendorf, 3 Den. 114; Stone v. Graves, 8 Mo. 148; Londegan v. Hammell, 30 Ia. 508; Booth v. Kurrus, 55 N.J.L. 370, 26 At. Rep. 1013; Bamster v. Wakeman, 23 At. Rep. 385; Cooley on Torts, 403-416. Judges are not liable in damages for acts in excess of but not in complete absence of jurisdiction. State v. Wolever, 26 N.E. 762; Pickett v. Wallace, 57 Cal. 555; Rutherford v. Holmes, 66 N.Y. 368; Truesdale v. Combs, 33 Ohio St. 186; Bigelow v. Stearns, 19 Johns 38; Piper v. Pearson, 2 Gray 120. Officers as essential parts of the court are likewise exempt from civil liability. Taylor v. Bidwell, 65 Cal. 489, 4 P. 491; Bostwick v. Lewis, 2 Day (Conn.) 447; Dunlap v. Glidden, 31 Me. 435; Severance v. Jedkins, 73 Me. 376; Garing v. Frazer, 76 Me. 37; Phelps v. Stearns, 4 Gray 105; Curtis v. Fairfield, 16 N.H. 542; Smith v. Lewis, 3 Johns 157; Jones v. McCaddin, 34 Hun. 632; Cunningham v. Braun, 18 Vt. 123; Bell v. Senneff, 83 Ill. 122; Turpen v. Booth, 56 Cal. 68; Downs v. Lent, 6 Cal. 95; Gordon v. Farren, 2 Dougl. (Mich.) 411, 1 Waits Pr. 227. The defendant Winterer as states attorney cannot be held liable for his official act, because the court had jurisdiction of the case and he cannot be held liable for executing the court's order. Bishop's Non-Contract Law 792. Marks v. Townsend, 97 N.Y. 590; Melten v. Adams, 52 N.Y. 409; Murphy v. Walters, 34 Mich. 180; Fenelon v. Butts, 49 Wis. 342; Hahn v. Schmidt, 64 Cal. 284; Fisher v. Langbein, 103 N.Y. 84; Dusy v. Helin, 59 Cal. 188. The defendant Sterl, as clerk of court, cannot be held liable, the rule is that "a ministerial officer who performs in the prescribed manner and with due care and diligence an act imposed by law incurs no liability to an individual injured thereby." Mechem on Pub. Officers § 661; Highway Com'rs. v. Ely, 54 Mich. 175; Sage v. Laurain, 19 Mich. 137; 1 Jaggard on Torts 127. The same protection extends to the sheriff. Mechem on Pub. Officers, §§ 745, 768; Cooley on Torts 460. The charge of conspiracy in the complaint does not change the nature of the action or add to its legal effect. The test as to whether such action will lie is whether or not the act accomplished after the conspiracy has been formed is itself actionable. Delz v. Winfre, 80 Tex. 400, 26 Am. St. Rep. 755; Robertsou v. Parks, 24 At. Rep. 411; Kimball v. Harman, 6 Am. Rep. 340; Laverty v. Vanarsdale, 65 Pa. 507; Hutchins v. Hutchins, 7 Hill 104; Cooley on Torts 125; City v. Simmons, 23 N.E. 211; Race v. Coolidge, 121 Mass. 393; Van Horn v. Van Horn, 20 At. Rep. 485; Stevens v. Rowe, 59 N.H. 578. The allegation of conspiracy is mere surplusage, and is not necessary to support the action. Mapstrick v. Ramge, 9 Neb. 390; Strout v. Packard, 76 Me. 156; Laverty v. Vanarsdale, 65 Pa. 507; Hutchins v. Hutchins, 7 Hill 104; Verplanck v. Van Buren, 76 N.Y. 259; Jones v. Baker, 7 Cow. 445; Sheple v. Page, 12 Vt. 519. Proof of conspiracy is not necessary to a recovery even when alleged. Buffalo L. O. Co. v. N.Y.S. O. Co., 42 Hun. 156; Buffalo L. O. Co. v. Everest, 30 Hun. 586; Hutchins v. Hutchins, 7 Hill 167; Van Horn v. Van Horn, 56 N.J.L. 318.
The complaint in this case presents, upon a superficial reading of it, a strange medley of conspiracy, false imprisonment, malicious prosecution, slander, and other unlawful invasions of the plaintiff's rights. Distinct causes of action appear to succeed each other in rapid succession, each making its separate claim for heavy damages for the wrong it essays to charge against the parties to this alleged conspiracy, the defendants in this case. If the sufficiency of the pleading is to be tested by the number and character of the adjectives employed by the pleader,--if the marshaling of a formidable array of intense epithets can obscure or change the character of the facts which are spread upon the face of the complaint, or alter the legal rules which apply to such facts, then, indeed, has the plaintiff stated a cause of action entitling him, if sustained by evidence, to the recovery of very heavy damages. A dark and foul conspiracy has been formed and executed by the defendants, having for its object the malicious prosecution of the plaintiff, his unlawful arrest, his incarceration in a noisome prison, the defamation of his character, and the wresting from him of the privilege of following the profession of the law for a livelihood by accomplishing his disbarment. So runs the complaint in its theory. But when we read its admitted facts in the light of legal principles hoary with time and of universal recognition, we can find nowhere within its four corners any charge of an actionable wrong. An examination of the pleading as a whole discloses the fact that there is only one conspiracy alleged, and only one series of acts performed in furtherance thereof. Therefore all artificial lines dividing the complaint into different causes of action must be obliterated. With these arbitrary barriers removed, and the facts stripped of the disguise of verbiage by which the plaintiff has attempted to alter their character and legal effect, we find ourselves in the presence of a very simple case. The defendants are charged with having confederated together for the unlawful purpose of harassing and damaging the plaintiff by means of certain proceedings in court; and it is alleged that in pursuance of said conspiracy the defendants procured from third persons certain affidavits, and on the basis of such affidavits had the plaintiff prosecuted for contempt of court, and to secure his disbarment as a practicing attorney; that, as a result of such prosecution, he was imprisoned, and finally adjudged guilty of contempt of court, and disbarred; that on appeal to the Supreme Court the judgment in the disbarment proceedings and the order in the contempt proceedings were reversed; and that ultimately such proceedings terminated in his favor. It is thus seen that the action is for malicious prosecution, and for malicious prosecution only. There was no false imprisonment, for plaintiff's arrest was in a proceeding in court over which the court had jurisdiction, and, in which an arrest was proper, so far as the contempt proceedings were concerned.
The charge of conspiracy adds nothing to the case. A conspiracy, if proved, might augment the damages; but it would not of itself transmute nonactionable into actionable facts. If that which was in fact done by the conspirators was not a legal wrong, the circumstance that the defendants entered into a confederation to accomplish the result which actually was accomplished, and that all that was done was done under and in furtherance of the conspiracy, is entirely immaterial. Delz v. Winfree, 80 Tex. 400, 16 S.W. 111; Kimball v. Harman, 34 Md. 407; Hutchins v. Hutchins, 7 Hill 104; Cooley, Torts, 125; City of Boston v. Simmons, (Mass.) 150 Mass. 461, 23 N.E. 210; Rice v. Coolidge, 121 Mass. 393; Van Horn v. Van Horn (N. J. Sup.) 52 N.J.L. 284, 20 A. 485; Stevens v. Rowe, 59 N.H. 578; Robertson v. Parks, 76 Md. 118, 24 A. 411; Laverty v. Vanarsdale, 65 Pa. 507.
It is doubtful whether the complaint contains a sufficient allegation as to want of probable cause; but it is immaterial whether it does or not for it also contains another averment which is fatal to that allegation. The plaintiff...
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