State ex rel. Egan v. Wolever

• Citation: 26 N.E. 762,127 Ind. 306
• Decision Date: 19 February 1891
• Docket Number: 14,818
• Parties: State, ex rel. Egan, v. Wolever et al
• Court: Indiana Supreme Court

26 N.E. 762

127 Ind. 306

State, ex rel. Egan, v. Wolever et al

No. 14,818

Supreme Court of Indiana

February 19, 1891

From the Tippecanoe Circuit Court.

Judgment affirmed with costs.

R. C Pollard and C. R. Pollard, for appellant.

L. D Boyd and R. P. Davidson, for appellees.

OPINION

McBride, J.

This was a suit by appellant for false imprisonment against Andrew W. Wolever, as mayor of the city of Delphi, and Allen M. Eldridge and Henry H. Montman, sureties on his official bond.

Appellant was brought before the mayor for trial, charged with unlawfully selling intoxicating liquors to a minor. He was prosecuted by the name of James Aikens, and on being arraigned entered a plea of not guilty.

He then asked for a change of venue from the court. This was not granted him, and the court proceeded to hear and determine the case. He was adjudged guilty, and fined $ 20 and costs. In default of payment he was committed to jail, where he remained one day, and then, to secure his release, paid the fine and costs, amounting to $ 30.80.

Appellant bases his right to recover on the failure of the court to grant him a change of venue, and on the circumstances connected therewith. The complaint was in four paragraphs, and the court below sustained a separate demurrer to each paragraph upon the ground that it did not state facts sufficient to constitute a cause of action. An exception to this ruling, properly saved, presents the only questions in the record.

Omitting prefatory and technical averments, the facts constituting the alleged false imprisonment are stated in the first paragraph of the complaint as follows:

"That on the 19th day of December, 1887, the relator, Mike Egan, was brought before said defendant, Andrew W. Wolever, upon a warrant issued by him, as such mayor, against the relator by the name of 'James Aikens,' upon the charge of unlawfully selling liquor to a minor, and was compelled and required to plead to said charge. Whereupon he pleaded not guilty, and knowing that the issue thus made could not be fairly tried before the defendant, Andrew W. Wolever, because of the bias and prejudice of the said Wolever against every one who is charged with unlawfully selling intoxicating liquors, and knowing that the defendant, Wolever, entertained malice towards all who are engaged in the lawful business of selling intoxicating liquors, and being unwilling to subject himself to the peril of an unjust, unfair and prejudiced trial of the charge against him, before the trial of said cause began, he made and subscribed an affidavit in the words and figures following:

"'State of Indiana, Carroll County.

"'State of Indiana vs. Mike Egan.

Affidavit for Change of Venue.

"'The defendant, Mike Egan, being first duly sworn, says that he can not have a fair and impartial trial in said cause before the mayor, Andrew Wolever, on the account of his prejudice against said defendant and his defence to said action.

Mike Egan.'

"And having made and subscribed said affidavit, he requested the defendant, Andrew W. Wolever, said mayor, to swear him to said affidavit, to permit him to file the same, and thereupon to grant him a change of venue; but said defendant, Wolever, acting as such mayor, refused to swear him to said affidavit, refused to file the same and refused to grant him a change of venue, and proceeded to try and convict relator of the offence with which he was charged, and to inflict punishment upon him therefor. That in so acting the defendant, Wolever, acted unlawfully, maliciously and corruptly, well knowing his duty to swear the relator to said affidavit, and that the same, when sworn to, was sufficient to compel a change of venue, well knowing the relator's right to apply for a change of venue; that this relator is the very person who was brought before the defendant, Wolever, by virtue of said warrant, the only person who pleaded to the charge embraced in said warrant, and the affidavit upon which it issued, and was known to the defendant, Wolever, to be such person."

The second paragraph, in addition, charges that the appellee having in said cause found appellant guilty as charged, adjudged, as his punishment, that "he make his fine to the State of Indiana in the sum of twenty dollars, and that he be imprisoned in the jail of Carroll county for ----- days, and that he pay the costs of the prosecution, and stand committed until said fine and costs are paid or replevied."

Said paragraph then proceeds as follows: "And adjudged no other punishment or penalty whatever; and because the relator was unable to pay said fine and costs the defendant, Wolever, still acting as such mayor, issued his mittimus to the jailer of Carroll county, Indiana, in which said defendant, Wolever, falsely, maliciously, knowingly and corruptly, recited and declared that in default of payment of such judgment, or costs, the defendant was further adjudged and required to pay the same by manual labor, under the control of the street commissioner, in streets, or other public works of the city of Delphi, at a rate of ----- cents per day, and commanding said jailer to receive the relator into his custody, and to obey the judgment so recited in reference to the relator. That in obedience to the command of said writ the jailer of Carroll county, Indiana, did take the relator into his custody, and imprisoned him in the common jail of Carroll county, Indiana, where the relator was imprisoned and detained for the period of one day, greatly to relator's damage," etc.

The third paragraph contains the additional allegations that, after the mayor had refused to swear appellant to the affidavit for a change of venue, and while "said cause was yet pending, before the trial thereof was begun, and before judgment or finding therein had been made or pronounced, the relator procured the services of a notary public of Carroll county, Indiana, and then and there, in the presence and hearing of the defendant, Andrew W. Wolever, was by said notary public, sworn to the truth of the matters set forth in said affidavit, and said notary public then and there, in the presence and view of the defendant, Andrew Wolever, attached to said affidavit his notarial seal," etc., and alleged that appellant then renewed his motion for a change of venue, tendering said affidavit in support of the motion, but that the mayor refused to receive or examine it, or to grant the change.

The fourth paragraph contains no material averment in addition to such as are contained in one or more of the other paragraphs.

The powers and duties of mayors of incorporated cities are defined by section 3062, R. S. 1881. Among other powers conferred upon him he is given, within the limits of the city, the jurisdiction and powers of a justice of the peace in all matters, civil and criminal, arising under the laws of this State. In crimes and misdemeanors his jurisdiction is co-extensive with the county in which such city is situated, and his jurisdiction is enlarged over that of a justice of the peace, so that he may adjudge imprisonment as a part of his sentence, not exceeding thirty days in the city or county prison.

The jurisdiction of justices of the peace in criminal cases is defined by section 1637, R. S. 1881. They are given concurrent jurisdiction with the circuit and criminal courts to try and determine all cases of misdemeanors punishable by fine only, and may assess fines to the amount of twenty-five dollars.

Selling or giving intoxicating liquor to a minor is made a misdemeanor by section 2094, R. S. 1881, and is punishable by fine only.

Appellant was arrested on a warrant issued by the mayor upon a charge of selling intoxicating liquor to a minor. The prosecution against him was, therefore, one of which as mayor he had jurisdiction. Appellant being brought into court and arraigned entered a plea of not guilty. The court then had jurisdiction both of the subject-matter and of the person of appellant. Indeed, up to this point the jurisdiction of the mayor is not questioned. The question is, how far, if at all, are the mayor and his sureties liable by reason of what transpired thereafter?

The position of appellant, as we understand it, is that he was entitled to the change of venue for which he asked, that when the application for the change was made its effect was to oust the jurisdiction of the mayor, and that all his subsequent acts were coram non judice and void.

There is nothing novel in the principle here involved, as questions concerning the liability of judicial officers, for their acts as such, have engaged the attention of the courts from an early day. The only difficulty is in the application of that principle to the facts in any given case. As pertinent to the question we quote the language of Folger, J., in the case of Lange v. Benedict, 73 N.Y. 12 (18 Albany Law Journal, p. 11): "There are not many topics in the law which have received more discussion and consideration than that of the liability of a person holding a judicial, or quasi judicial, office, to an action at law, for an act done by him while, at the same time, exercising his office. The principles which should govern such action are therefore, well settled. The difficulty in satisfactorily disposing of a particular case is, not in finding the rule of law upon which it is to be decided, but in determining on which side of that rule the facts of the case do lie. The general rule, which applies to all such cases, and which is to be observed in this, has been in olden times stated thus: 'Such as are by law made judges of another, shall not be criminally accused, or made liable to an action for what they do as judges;' to which the Year Books (43 Edw. III. 9; 9 Edw. IV. 3) are cited in Floyd v. Baker...