Watts v. Gerking

• Decision Date: 14 January 1924
• Parties: WATTS v. GERKING ET AL.
• Court: Oregon Supreme Court

222 P. 318

111 Or. 641

WATTS v. GERKING ET AL.

Supreme Court of Oregon

January 14, 1924

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

Action by Homer I. Watts against George Gerking, Alf Oftedahl, R.I Keator, and others. Demurrer of last-named defendant was sustained, and plaintiff appeals. Reversed and remanded.

Homer I. Watts and E. C. Prestbye, both of Athena for appellant.

C. Z Randall and James A. Fee, Jr., both of Pendleton (Fee & Fee, of Pendleton, on the brief), for respondent.

RAND J.

This is an action against five defendants for malicious prosecution in instituting criminal proceedings against the plaintiff, causing him to be arrested, his home to be searched, and property in his possession to be taken from him, maliciously and without probable cause, upon a charge which, it is alleged, the defendants at the time knew to be false.

The plaintiff is a reputable attorney at law, regularly admitted to practice, and resided with his wife at his home at Athena, where he had in his possession a quantity of intoxicating liquor which the complaint alleges he had acquired prior to the enactment of the prohibition laws, and, if thus acquired, the possession thereof was lawful under section 2224-4, Or. Laws. In effect the complaint charges that the defendants, knowing that the plaintiff's possession of such liquor was lawful, in order to injure and disgrace the plaintiff, entered into an unlawful agreement and conspiracy to charge him with being unlawfully in possession of said liquor, and with maintaining a nuisance at his home by keeping the liquor there for the purpose of barter and sale. The complaint further alleges, in substance, that the defendants falsely, maliciously, and without probable cause, and knowing that the charge was false, filed a criminal information in the justice's court, and caused the plaintiff to be arrested, his home to be searched, the liquor lawfully in his possession to be taken, and a notice, stating that proceedings to confiscate the same had been instituted, to be posted and publicly displayed on his house, and attempted to suborn perjury against him upon the trial; that on the trial of such charge in the justice's court, the plaintiff was found to be not guilty, and that an appeal was taken by the defendants to the circuit court for Umatilla county, where, upon a trial had in that court, the plaintiff was again found to be not guilty, and was discharged; that the action has been finally terminated in favor of the plaintiff, and that said proceedings were instituted by the defendants maliciously, and without probable cause and with full knowledge upon the part of the defendants that the charge was wholly false.

The respondent herein, R.I. Keator, is the district attorney for Umatilla county. The circuit court sustained his separate demurrer to the complaint, and, as to him, dismissed the action on the ground that the complaint did not state facts sufficient to constitute a cause of action against him. Although there was no allegation in the complaint that the defendant Keator, at the time of the commission of the acts complained of, was district attorney for Umatilla county, yet the court, taking judicial notice of that fact, held that he was not accountable to the plaintiff in an action for damages for acts done by him in his official capacity, and upon that ground sustained the demurrer as to him, and overruled a demurrer upon the same ground as to the other defendants.

While the Code (sections 728, 729, Or. Laws) provides that certain facts shall be judicially noticed, and that evidence of those facts need not be produced, and while it has been said that, "Where the law presumes a fact, the same need not be stated in the pleading. Thus matters of which the court takes judicial notice need not be alleged" (1 Estee's Pleadings [4th Ed.] § 188)--we doubt very much whether a court is authorized to construe a complaint as if it contained an allegation of an essential and material fact which has not been pleaded, although the fact is one which, on trial, the court might take judicial notice of, and determine the sufficiency of such complaint upon a consideration of other facts than those alleged. The only case cited by Mr. Estee in support of his statement that matters of which the court takes judicial notice need not be alleged, is the case of Goelet v. Cowdrey, 1 Duer (N. Y.) 132, 139, and in that case the question before the court was whether express reference to the statute by its title, or otherwise, was necessary in pleading the statute of frauds, and it was held that it was sufficient to set forth the facts which render the provisions of the statute applicable. Other cases in illustration of the rule stated by Mr. Estee are cited, but there is no analogy between those cases and the case made by the complaint here. Nor do the allegations of the complaint bring the case within the rule stated in Peterson v. Standard Oil Co., 55 Or. 511, 518, 106 P. 337, 340 (Ann. Cas. 1912A, 625), where it was held that:

"* * * Whatever quality in a substance is taken judicial notice of is, in effect, pleaded when the substance itself is mentioned, at least that such method of allegation, even if meager and defective, will be sufficient on general demurrer."

Under these allegations, the acts charged against Keator could have been committed as well in his individual as in his official capacity, and for this reason, if for none other, the legal sufficiency of this complaint ought not to have been determined by consideration of a fact not alleged or in any way referred to, even though it might be that, upon the trial proof of the fact, if alleged, might be unnecessary because the court might be authorized to take judicial notice of it. But, as the plaintiff, upon the argument, conceded that, in the commission of the acts charged in the complaint, the defendant Keator was acting in his official capacity, and consented to a consideration of the complaint for the purposes of the demurrer as if it contained an allegation to that effect, and as we are of the opinion that the demurrer ought to have been overruled, even if such fact had been alleged, we shall, as did the circuit court, consider the complaint as if it actually contained a specific allegation of that fact.

In the performance of an official duty a district attorney is both a law officer and, in common with all attorneys, an officer of the court; but he is not a judicial officer, nor is he a part of the court. In investigating the facts and determining whether criminal proceedings shall be instituted he acts in a quasi judicial capacity.

"The same reasons of private interest and public policy which operate to render the judicial officer exempt from civil liability for his judicial acts within his jurisdiction apply equally as well to the quasi judicial officer." Newell on Malicious Prosecution, § 68.

Judges of courts of limited and inferior jurisdiction are exempt from liability for their judicial acts, while acting within their jurisdiction and not otherwise; while a judge of a court of superior or general jurisdiction is not liable to a civil action for his judicial acts, even where such acts are in excess of his jurisdiction and are alleged to have been done maliciously or corruptly. But a judge of a court of superior or general jurisdiction is liable for his judicial acts, if done corruptly or maliciously, where there is a clear absence of all jurisdiction over the subject-matter and the want of jurisdiction is known to the judge. Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646.

In Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001, the court held that a prosecuting attorney is not liable in an action for malicious prosecution for participation by him in procuring an indictment maliciously and without probable cause. Based upon this decision the rule has been stated that:

"A prosecuting attorney, being a judicial officer of the state, is not liable in damages for acts done in the course of his duty, although willful, malicious, or libelous." 32 Cyc. 717; 18 C.J. 1318.

Following the rule announced in Griffith v. Slinkard, supra, it is held in Smith v. Parman, 101 Kan. 115, 165 P. 663, L. R. A. 1917F, 698, that a city attorney, while engaged in the prosecution of a person charged with the violation of an ordinance, is not liable in damages to the person injured, for instituting a prosecution under an ordinance, maliciously and without probable cause.

The case of Parker v. Huntington, 2 Gray (Mass.) 124, is relied upon as an authority sustaining the rule above stated but an examination of the opinion in that case will disclose that it does not announce any such doctrine. It happened in that case that one of the defendants in the action, which was an action for malicious prosecution, had acted in the capacity of district attorney in the prosecution of the plaintiff, but the right of the plaintiff to maintain the action was not denied upon that ground. His right to maintain the action was denied upon the sole ground that he had...