Waters v. Barclay, 6338

• Decision Date: 04 February 1937
• Docket Number: 6338
• Citation: 57 Idaho 376,64 P.2d 1079
• Parties: DELOSS C. WATERS, Appellant, v. ADAM B. BARCLAY, Respondent
• Court: Idaho Supreme Court

64 P.2d 1079

57 Idaho 376

DELOSS C. WATERS, Appellant, v. ADAM B. BARCLAY, Respondent

No. 6338

Supreme Court of Idaho

February 4, 1937

FALSE IMPRISONMENT-JUDICIAL OFFICERS, LIABILITY OF.

District court judge held not liable in damages for false imprisonment of defendant adjudged in contempt after he had filed affidavit of prejudice, although statute precluded judge from proceeding further after filing of affidavit, since judge had general jurisdiction of parties and subject matter of action and merely acted in excess of, but not without, jurisdiction. (I. C. A., sec. 1-1801, as amended Laws 1933, chap. 218.)

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Doran H. Sutphen, Presiding judge.

Action for damages. Judgment for respondent. Affirmed.

Demurrer to the complaint sustained and judgment affirmed. Costs awarded to respondent.

Deloss C. Waters, appellant, for himself.

Where there is no authority over the subject matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is shown to the judge, no excuse is permissible. (Cooke v. Bangs, 31 F. 640, 643; Comstock v. Eagleton, 11 Okla. 487, 69 P. 955.)

W. A Babcock, Frank L. Stephan, James R. Bothwell, R. P. Parry, J W. Porter and W. Orr Chapman for Respondent.

A distinction must be observed between excess of jurisdiction and absence of all jurisdiction over the subject matter. Where jurisdiction is invested in the court, the manner and extent in which jurisdiction shall be exercised are as much questions for his determination as any other questions involved in the case. (Bradley v. Fisher, 13 Wall 335, 20 L.Ed. 646; Comstock v. Eagleton, 11 Okla. 487, 69 P. 955; State v. Wolever, 127 Ind. 306, 26 N.E. 762.)

GIVENS, J. Morgan, C. J., Holden, and Ailshie, JJ., concur.

OPINION

GIVENS, J.

March 5th, 1935, appellant was served with an order, issued in an action then pending in the Eleventh District Court for Twin Falls county before respondent, presiding judge, between appellant and Frances Waters, restraining appellant from disposing of any community property. March 26, 1935, a bench warrant was issued for appellant's arrest for violating the above order, and on the 27th of March he was taken into custody by the sheriff of Twin Falls county. March 28th appellant filed the following affidavit:

"Deloss C. Waters, being first duly sworn deposes and says, that he is the defendant in the above entitled action, that he was upon the 26th day of March, 1935, arrested and confined in Jail for contempt of Court in said action, wherein a bench warrant was issued to and for his said arrest forthwith and without notice and said bench warrant ordered that defendant be brought before said court at 5 o'clock P. M. upon said date of arrest, and that the Hon. A. B. Barclay who issued said bench warrant prior to said hour left Twin Falls for Jerome, continuing said hearing until Friday March 28th, 1935.

"That the said the Hon. A. B. Barclay said judge of said Court defendant believes and has reasons to believe is biased, and prejudiced in the said matter, and it will be impossible for defendant to have and receive a fair and impartial hearing in said matter before the said the Hon. Judge Barclay, and hereby requests and demands that said hearing be heard and had before some judge other that the said A. B. Barclay.

"DELOSS C. WATERS, DELOSS C. WATERS

"Subscribed and sworn to before me this 28th day of March 1935.

"(Seal.) O. C. HALL, Notary Public.

Twin Falls, Idaho."

Nevertheless after a hearing before him on March 29th, respondent committed appellant to jail to serve in default of payment thereof of a fine of $ 300 at the rate of $ 2 per day, for contempt in violation of the first order above mentioned. Appellant was released by a writ of habeas corpus out of this court, April 18th.

This action was brought by appellant against respondent for damages for the alleged false imprisonment on the theory that respondent under Section 1-1801, I. C. A., as amended by 1933 Session Laws, Chapter 218, page 463, was entirely without jurisdiction to make the order of March 29, 1935. From the judgment dismissing the action following the sustaining of a demurrer to the complaint substantially reciting the above, as not stating a cause of action, by a judge other than respondent, this appeal was taken.

By the terms of the statute after the filing of an affidavit of prejudice the judge is without authority to proceed further except as to certain matters not involved herein. Nevertheless the judge was not without jurisdiction so as to charge him with civil liability in this, that he had first to determine that an affidavit complying with the statute had been filed by a party to the action, or his attorney or agent, and that this section applied to contempt proceedings.

That the judge had general jurisdiction of the parties and the subject matter, i. e., right to control the community property of Deloss and Frances Waters in the action pending before him and enforce his orders by contempt proceedings, is not questioned. Thus by proceeding as he did, after the affidavit was filed, respondent acted in excess of, but not without, jurisdiction. The authorities are uniform that under such circumstances a judge is not liable in civil damages.

"Subject to some qualifications of the rule where judges of inferior jurisdiction are concerned, no person is liable civilly for what he may do as judge while acting within the limits of his jurisdiction, nor is he so liable for neglect or refusal to act. The rule is especially true where the judge is one having general jurisdiction, and, in such case, there is no liability, even though he exceeds his authority, or even though it is a case in which the judge is called upon to decide whether or not a particular case is within his jurisdiction, and he falls into error in arriving at that conclusion. Where a judge has full jurisdiction of the subject matter and of the parties, he is not liable civilly where he acts erroneously, illegally, or irregularly, and he is not chargeable with costs...