Rush v. Buckley

CourtSupreme Judicial Court of Maine (US)
Writing for the CourtWISWELL, C. J.
Citation61 A. 774,100 Me. 322
Decision Date19 June 1905
PartiesRUSH v. BUCKLEY et al. SAME v. FAIRFIELD et al.
61 A. 774
100 Me. 322

RUSH
v.
BUCKLEY et al.
SAME
v.
FAIRFIELD et al.

Supreme Judicial Court of Maine.

June 19, 1905.


61 A. 775

Report from Augusta Municipal Court.

Actions by Charles Rush against Daniel Buckley and others and by the same plaintiff against Herbert W. Fairfield and others. Cases reported, and judgments for defendants.

Two actions for false imprisonment heard together. Each writ dated January 15, 1905. Plea, in each case, the general issue. After all the evidence had been taken out in the court of the first instance, it was agreed that the same should be reported to the law court, and that "upon so much thereof as is legally admissible the court to render such judgment in each case as the law and evidence require."

The defendants are Daniel C. Buckley, Herbert W. Fairfield, Albert G. Andrews, judge of the municipal court of the city of Augusta, and Henry N. Breen, city marshal of said city. Said defendants Buckley and Fairfield had each made a complaint against the plaintiff for violation of an ordinance of the city of Augusta regulating public carriages therein, and which prohibits all persons from driving such a carriage in said city without a license therefor, under a penalty therein provided. On these complaints warrants for the arrest of the plaintiff were duly issued by said judge, and the plaintiff was arrested on said warrants by said city marshal and

61 A. 776

brought before said judge for trial, who found the plaintiff guilty as charged in said complaints and fined the plaintiff $10 in each case. A mittimus was issued in each case, and by virtue thereof the plaintiff was committed to jail, where he remained for four hours, and was then released on bail. The plaintiff then brought these two actions for false imprisonment, upon the ground that the aforesaid ordinance had never gone into effect and was void, because it had never been published in some newspaper printed in Augusta, as required by Rev. St. c. 4, § 93, par. 9.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, PEABODY, SPEAR, and EMERY, JJ.

Williamson & Burleigh, for plaintiff. E. M. Thompson, for defendants.

WISWELL, C. J. The plaintiff had been arrested upon two occasions, brought before the Augusta municipal court, tried, convicted, sentenced to pay a fine in each case, and committed to jail in default of such payment, upon warrants issued by that court. The offense alleged in the complaint and warrant in each case was the violation of an ordinance of the city of Augusta regulating public carriages therein, and which prohibited all persons from driving such a carriage in the city of Augusta without a license therefor, under a penalty therein provided. In these two cases, reported and argued together, the plaintiff sues the judge of the municipal court who issued the warrants, the officer who served them, and the persons who made the two complaints for false imprisonment, upon the ground that the ordinance had never gone into effect, and was void, because it never had been published in some newspaper printed in Augusta, as required by the statute authorizing such ordinances. Rev. St. c. 4, § 93, par. 9.

Assuming that the ordinance never became effective because of this failure to publish it, the question presented by the two cases is whether the judge who issued the warrants, the officer who served them, and the persons who made the complaints upon which they were issued, or either of them, are liable in damages to the plaintiff for this alleged false imprisonment. The plaintiff makes the preliminary point that it is not open to the defendants to justify under these proceedings, since no such justification was set up in the pleadings; but where a case comes to the law court, as did this, upon a report of the evidence, the necessity for a compliance with the rules of pleading must be considered as waived, and we will therefore proceed to consider the questions presented by the report.

As to the liability of the defendants who made the original complaints upon which the warrants were issued, it is settled by an almost unbroken line of authorities that, where a person does no more than to prefer a complaint to a magistrate in a matter over which the latter has a general jurisdiction, he is not liable in trespass for false imprisonment for the acts done under the warrant which the magistrate thereupon issues, though the magistrate has no jurisdiction over the particular complaint. Barker v. Stetson, 7 Gray, 53, 66 Am. Dec. 457; Langford v. Boston & Albany R. R. Co., 144 Mass. 431, 11 N. E. 697; Gifford v. Wiggins, 50 Minn. 401, 52 N. W. 904, 18 L. R. A. 356; Murphy v. Walters, 34 Mich. 180; Teal v. Fissel (C. C.) 28 Fed. 351. If the complaint is malicious and without probable cause, the complainant would be answerable in another form of action, and it would be no defense that the facts stated to the magistrate, upon which the warrant was issued, did not constitute a criminal offense. Finn v. Frink, 84 Me. 261, 24 Atl. 851, 30 Am. St. Rep. 348. In order for a complainant to be liable in this form of action, whether his motives were malicious or not, he must do something more than merely to make coinplaint before a magistrate having jurisdiction of the party and over the general subject-matter, by interfering and instigating the officer to enforce the warrant "The rule is that if a stranger voluntarily takes upon himself to direct or aid in the service of a bad warrant, or interposes and sets the officer to do execution, he must take care to find a record that will support the process, or he cannot set up and maintain his justification." Emery v. Hapgood, 7 Gray, 55, 66 Am. Dec. 459.

There is no evidence in this case sufficient to take it out of the general rule as to the liability of the complainants. Neither of these complainants aided or in any way participated in the arrest of the plaintiff upon the warrants, or in his commitment to jail after the hearing, in default of the payment of the fine imposed. They did not in any way take part in the plaintiff's arrest or commitment, nor did they officially interfere therewith by giving directions to the officer, or otherwise. It is true that one of the complainants, when asked by the judge, after the imposition of the fine, as to whether or not he wanted the sentence enforced, replied in the affirmative; but this was no such interference with the service of the warrant of arrest or of commitment as should make him liable therefor, and amounted to no more than the making of the original complaint.

As to the liability of the officer, for reasons founded on public policy, and in order to secure a prompt and effective service of legal process, the law protects its officers in the performance of their duties, if there is no defect or want of jurisdiction apparent on the face of the writ or warrant under which they act. The officer is not bound to look beyond his warrant. He is not to exercise his judgment touching the validity of the process in

61 A. 777

point of law; but if it is in due form, and is issued by a court or magistrate apparently having jurisdiction of the case or subject-matter, he is to obey its commands. In such case, he may justify under it, although in fact it may have been issued without authority, and therefore be wholly void. Emery v. Hapgood, 7 Gray, 55, 66 Am. Dec. 459. The theory of the law is to protect an officer in his acts of official duty so far as it reasonably can without injustice to others. The rule should be liberally interpreted in the officer's behalf. Elsemore v. Longfellow, 76 Me. 128. Where the process is in due form and comes from a court of general jurisdiction over the subject-matter, the officer is justified in acting according to its tenor, even if irregularities making the process voidable have previously occurred. Tellefsen v. Pee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St Rep. 379, wherein numerous cases are cited and considered. Where, however, the process is void on its face, or where the court or magistrate issuing the warrant has no general jurisdiction over the subject-matter, the officer is not protected by his process.

We have had numerous illustrations of this latter rule in the reported decisions of this court, some of which may be referred to for the purpose of showing the ground upon which all of these decisions have been based. In Warren v. Kelley, 80 Me. 512, 15 Atl. 49, the process commanded the officer to seize a vessel for the purpose of enforcing a lien created by a state statute for repairs upon a vessel. The statute authorizing the enforcement of such a lien by a proceeding in the state court was unconstitutional. The court had no jurisdiction over the subject-matter, which, by the Constitution of the United States, was vested in the federal courts. It was therefore held by this court that the officer was not protected by the process, because the process was absolutely void, inasmuch as the state court had no jurisdiction over the subject-matter, and "sufficient appeared upon its face [the process] to show that it was not from a court of competent jurisdiction in reference to the subject-matter."

In Stilphen v. Ulmer, 88 Me. 211, 33 Atl. 980, the plaintiff resided and was arrested in Kennebec county upon a warrant issued by a trial justice of Knox county for violating the fish and game laws in Lincoln county. The trial justice clearly had no jurisdiction over the subject-matter of the offense or over the offender, and these facts were apparent upon the face of the warrant, so that the officer who served the process was not protected by it. In Brown v. Howard, 86 Me. 342, 29 Atl. 1094, the writ under which the officer justified in an action of trover against him was void, and the defect was apparent upon the face of the writ and disclosed to the officer a want of jurisdiction. It was therefore held that it afforded him no protection. In Elsemore v. Longfellow, ...

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37 practice notes
  • O'regan v. Schermerhorn
    • United States
    • United States State Supreme Court (New Jersey)
    • November 7, 1946
    ...16 S.Ct. 631, 40 L.Ed. 780; Allard v. Estes, 292 Mass. 187, 197 N.E. 884, 889; Case v. Bush, 93 Conn. 550, 106 A. 822; Rush v. Buckley, 100 Me. 322, 61 A. 774, 778, 70 L.R.A. 464, 4 Ann.Cas. 318; 33 C.J. 982; 15 R.C.L. 549, sec. 33. The underlying reason for this rule of privilege is not th......
  • Allard v. Estes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 26, 1935
    ...128 N. Y. 229, 237,28 N. E. 477,14 L. R. A. 138;[292 Mass. 198]Sweeney v. O'Dwyer, 197 N. Y. 499, 504,90 N. E. 1129;Rush v. Buckley, 100 Me. 322, 331-335, 61 A. 774,70 L. R. A. 464,4 Ann. Cas. 318, and cases there reviewed; Randall v. Brigham, 7 Wall. 523, 539, 540, 19 L. Ed. 285;Alzua v. J......
  • Allard v. Estes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 26, 1935
    ...Vrooman, 128 N.Y. 229, 237,28 N.E. 477,14 L.R.A. 138; [292 Mass. 198] Sweeney v. O'Dwyer, 197 N.Y. 499, 504,90 N.E. 1129; Rush v. Buckley, 100 Me. 322, 331-335, 61 A. 774,70 L.R.A. 464,4 Ann.Cas. 318, and cases there reviewed; Randall v. Brigham, 7 Wall. 523, 539, 540, 19 L.Ed. 285; Alzua v......
  • Lucas v. Central Missouri Trust Co., No. 37428.
    • United States
    • United States State Supreme Court of Missouri
    • May 5, 1942
    ...italicised is that if the judge is not liable, the officers of the court who execute his orders also are immune. In Rush v. Buckley, 100 Me. 322, 327, 61 Atl. 774, 776-7, 70 L.R.A. 464, 465, 4 Ann. Cas. 318, 320, the Supreme Judicial Court of Maine thus declared the rule applicable to such ......
  • Request a trial to view additional results
37 cases
  • O'regan v. Schermerhorn
    • United States
    • United States State Supreme Court (New Jersey)
    • November 7, 1946
    ...16 S.Ct. 631, 40 L.Ed. 780; Allard v. Estes, 292 Mass. 187, 197 N.E. 884, 889; Case v. Bush, 93 Conn. 550, 106 A. 822; Rush v. Buckley, 100 Me. 322, 61 A. 774, 778, 70 L.R.A. 464, 4 Ann.Cas. 318; 33 C.J. 982; 15 R.C.L. 549, sec. 33. The underlying reason for this rule of privilege is not th......
  • Allard v. Estes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 26, 1935
    ...128 N. Y. 229, 237,28 N. E. 477,14 L. R. A. 138;[292 Mass. 198]Sweeney v. O'Dwyer, 197 N. Y. 499, 504,90 N. E. 1129;Rush v. Buckley, 100 Me. 322, 331-335, 61 A. 774,70 L. R. A. 464,4 Ann. Cas. 318, and cases there reviewed; Randall v. Brigham, 7 Wall. 523, 539, 540, 19 L. Ed. 285;Alzua v. J......
  • Allard v. Estes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 26, 1935
    ...Vrooman, 128 N.Y. 229, 237,28 N.E. 477,14 L.R.A. 138; [292 Mass. 198] Sweeney v. O'Dwyer, 197 N.Y. 499, 504,90 N.E. 1129; Rush v. Buckley, 100 Me. 322, 331-335, 61 A. 774,70 L.R.A. 464,4 Ann.Cas. 318, and cases there reviewed; Randall v. Brigham, 7 Wall. 523, 539, 540, 19 L.Ed. 285; Alzua v......
  • Lucas v. Central Missouri Trust Co., No. 37428.
    • United States
    • United States State Supreme Court of Missouri
    • May 5, 1942
    ...italicised is that if the judge is not liable, the officers of the court who execute his orders also are immune. In Rush v. Buckley, 100 Me. 322, 327, 61 Atl. 774, 776-7, 70 L.R.A. 464, 465, 4 Ann. Cas. 318, 320, the Supreme Judicial Court of Maine thus declared the rule applicable to such ......
  • Request a trial to view additional results

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