Shaw v. Moon

• Decision Date: 06 April 1926
• Citation: 245 P. 318,117 Or. 558
• Parties: SHAW v. MOON ET AL.
• Court: Oregon Supreme Court

245 P. 318

117 Or. 558

SHAW v. MOON ET AL.

Supreme Court of Oregon

April 6, 1926

Department 2.

Appeal from Circuit Court, Sherman County; D. R. Parker, Judge.

Action by Blake Shaw against E. B. Moon and another. From judgment sustaining defendants' general demurrer, plaintiff appeals. Reversed and remanded.

J. B. Hosford, of Salem, for appellant.

Jay L Lewis, of Corvallis, and C. M. Huddieston, of Albany (Yates &amp Lewis, of Corvallis, on the brief), for respondents.

BELT J.

The sole question, arising on general demurrer, is whether the complaint herein states a cause of action against the defendants, or either of them. Plaintiff alleges that he is the owner and entitled to the possession of a certain "Drive Clamp," an apparatus used in well drilling and which is of the reasonable value of $20; that the defendant Moon, maliciously and without probable cause procured the defendant Fortner, as recorder and ex officio justice of the peace of the city of Wasco, to issue a search warrant as follows:

"In the Recorder's Court of the City of Wasco, County of Sherman, Oregon.

"In the name of the State of Oregon.

"To Any Sheriff or Constable of the County of Sherman:

"To Any Marshal of the City of Wasco:

"Greeting--Information on oath having this day been laid before me that one certain 'Drive Clamp,' the property of E. B. Moon, has been unlawfully removed and taken from the lawful possession of the said E. B. Moon, in the city of Wasco, and reasonable grounds exist for the belief that it is now on the premises of Blake Shaw and Jim Shaw, or in the personal possession of same:

"You are therefore hereby commanded, at any time of the day or night, to search the premises of the said Jim Shaw and Blake Shaw, and on and about their person, for the following personal property, to wit, one certain 'Drive Clamp,' and if you find the same, or any part thereof, to bring same to me at my office in the city of Wasco.

"Dated this 4th day of October, 1920.

"F. R. Fortner,

"City Recorder, Ex Officio J. P."

It is averred that the justice of the peace, acting in conspiracy with his codefendant, with the malicious and wrongful purpose of depriving plaintiff of his property and of injuring, humiliating, and disgracing him in the community in which he lived, issued such warrant without an affidavit, examination of any witnesses, or the taking of any depositions as required by statute; that Fortner delivered the warrant to the city marshal for service, and that such official, "pursuant to said pretended and unauthorized search warrant," went about six miles beyond the corporate limits of the city of Wasco and wrongfully seized the property of plaintiff against his will and consent; that no inventory of the property so taken was made or delivered to the defendant magistrate, and the property was turned over to the district attorney of Sherman county, who now has it in his possession; that plaintiff has made numerous demands for the return of his property, but that defendant Fortner, with wanton disregard of the rights of plaintiff, and in furtherance of said scheme to injure him, has arbitrarily, wrongfully, and maliciously failed and refused to examine into said matter or to take further proceedings to determine plaintiff's rights in the property in question, although several terms of the circuit court for that district have been held therein. Plaintiff complains that the deprivation of his property, the humiliation and injury to his feelings and reputation have damaged him in the sum of $5,000. The complaint is quite lengthy, but the above statement contains the gravamen of plaintiff's charge.

Much space in the briefs pertain to the "label" to be put on this complaint, but we are not so much concerned with the form of the action (Cornelius on Search and Seizure. § 321), as we are with the question whether sufficient facts are alleged to show that plaintiff has sustained injury as a result of the wrongful acts of defendants, or either of them, for which recovery may be had. We think, however, that this is an action for malicious prosecution, even though counsel for appellant concedes that it is not.

The books are full of decisions relative to the civil liability of judicial officers, and the great variance in the authorities well demonstrates that law is not an exact science. One line of cases emphasizes the necessity of maintaining, as a matter of public policy, the independence of the judiciary; while another stresses the right of personal liberty and frowns upon any attempt to interfere therewith. In our opinion the better reasoned cases seek the golden mean.

Some authorities, in similar actions, distinguish between courts of limited and those of general jurisdiction; but the trend of modern authority is breaking down such distinction, and rightfully so. It is difficult to understand why we should hold liable a justice of the peace for blundering in the law, and exempt for the same offense those occupying higher judicial positions. As a matter of abstract justice and common sense, it would seem that those who speak the final word should at least be held to the same degree of accountability. So far as civil liability for judicial acts is concerned, we think judges of courts of limited and those of general jurisdiction stand upon the same plane. Rush v. Buckley, 61 A. 774, 100 Me. 322, 70 L. R. A. 464, 4 Ann. Cas. 318; Thompson v. Jackson, 61 N.W. 1004, 93 Iowa, 376, 27 L. R. A. 92; Calhoun v. Little, 32 S.E. 86, 106 Ga. 336, 43 L. R. A. 630, 71 Am. St. Rep. 254; Broom v. Douglass, 57 So. 860, 175 Ala. 268, 44 L. R. A. (N. S.) 164, Ann. Cas. 1914C, 1155; 15 R. C. L. 548; 25 C.J. 516.

Assuming that the allegations of the complaint are true, it appears that Fortner, as ex officio justice of the peace, acted entirely without jurisdiction and for the wrongful and unlawful purpose of injuring plaintiff. It is not a case of an erroneous exercise of jurisdiction, but rather one wherein there is a total absence of jurisdiction. It must not be confused with cases involving search warrants issued upon defective or insufficient affidavits, for in such proceedings the judge is exempt from liability even though he acted maliciously and without probable cause. There is a vast distinction between an erroneous exercise of authority and a usurpation of authority. It is not the policy of the law to subject courts of either limited or general jurisdiction to actions for damages, while acting within their jurisdiction, even though the judicial act be erroneous and not in good faith. In the instant case there was not even a colorable invocation of authority. The defendant Fortner was not called upon to function as a judge. It was a void proceeding. Under such circumstances, he is liable for...