Waugh v. Dibbens

• Decision Date: 11 July 1916
• Docket Number: 7424.
• Parties: WAUGH v. DIBBENS ET AL.
• Court: Oklahoma Supreme Court

160 P. 589

61 Okla. 221

WAUGH v. DIBBENS ET AL.

No. 7424.

Supreme Court of Oklahoma

July 11, 1916

Rehearing Denied Oct. 31, 1916.

Syllabus by the Court.

A judge of the county court, while taking depositions, has power to commit a witness for contempt for refusing to answer a material question.

An action will not lie against a judicial officer for a judicial act, where there is jurisdiction of the person and the subject-matter, although it be alleged and proved that such act was done maliciously, or even corruptly.

The same protection extends to judges of courts of inferior and limited as to those of general jurisdiction; the law exempts all judicial officers alike.

Attorneys at law, in the exercise of their proper functions as such are not liable for their acts, if such acts are in good faith and pertinent to the matter in question.

Commissioners' Opinion, Division No. 3. Error from District Court, Logan County; A. H. Huston, Judge.

Action by Le Roy E. Waugh against W. J. Dibbens and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Joseph Wisby, of Guthrie, and Milton Brown, of Oklahoma City, for plaintiff in error.

Dale & Bierer and C. C. Smith, all of Guthrie, for defendants in error.

RITTENHOUSE C.

Le Roy E. Waugh brought an action against the Guthrie Gas, Light Fuel & Improvement Company for injuries alleged to have been received on account of an explosion. After the petition was filed the defendant served notice to take depositions before Hon. J. C. Strang judge of the county court of Logan county, at which hearing the plaintiff, Le Roy E. Waugh, was sworn as a witness and testified to certain matter. When asked as to the name of the physician, living in Missouri, who attended him during his injuries, he refused to testify, whereupon Frank Dale, attorney for the company, requested and procured an order punishing him for contempt. The defendant was subsequently discharged by this court in Ex parte Waugh, 40 Okl. 188, 137 P. 105, wherein it was held that in cases of contempt, where a mandatory statute (section 5061, R. L. 1910) requires that the questions propounded be set out in the order of commitment, and such is not done, the commitment is void, and the prisoner should be discharged. On July 11, 1914, this action was brought against J. C. Strang, who was the judge of the county court of Logan county, and issued the commitment, Frank Dale, who was the attorney for the company, for whom the depositions were taken for use in the case of Le Roy E. Waugh v. Guthrie Gas, Light, Fuel & Improvement Company, and W. J. Dibbens, who was general manager of said company, asking judgment in the sum of $16,347, for an alleged false imprisonment, occasioned by his refusal to testify in the original action.

It is alleged that Frank Dale and W. J. Dibbens were present at the time the commitment was issued, advising, urging, soliciting, counseling, and procuring the court to cause the unlawful imprisonment, and that such wrongful acts were done willfully, knowingly, maliciously, wantonly, and oppressively on the part of said defendants. At the close of the evidence the court sustained the demurrer of J. C. Strang on the ground that he was acting in a judicial capacity at the time the commitment was issued, and within the jurisdiction conferred upon him by law. The court instructed the jury to return a verdict in favor of the remaining defendants, on the ground that the proof failed to establish a cause of action against them. The evidence offered by the plaintiff in the instant case, which would, in the least, connect W. J. Dibbens with this controversy was that he was the manager of the Guthrie Gas, Light, Fuel & Improvement Company, that he was in the courtroom at the time the commitment was issued, and that prior to the taking of the depositions he had sworn to an affidavit, stating that the depositions were being taken in good faith. This evidence was insufficient to constitute a cause of action for false imprisonment, and the court properly instructed the jury.

The argument contained in the brief of plaintiff in error does not refer to any particular assignment of error, but we gather from such brief that there are three questions for our determination: (1) In taking depositions under authority of section 5075, Rev. Laws 1910, does the judge of the county court take the depositions as a judicial officer with power to commit for contempt, or merely as a ministerial act? (2) Will an action lie against a judicial officer for false imprisonment where such officer acts within the scope of his judicial authority, even though it is alleged that such imprisonment was done willfully, knowingly, maliciously, wantonly, and oppressively? (3) Is an attorney at law, while acting in good faith, liable for damages for false imprisonment upon a showing that, while conducting a judicial hearing, he requested the court to punish a witness for contempt of court in refusing to answer a question which was material and pertinent to the issues involved in the suit?

We are asked to hold that the order committing the witness for contempt was without authority of law. Section 5075, Rev. Laws 1910, confers upon judges of courts of record authority to take depositions. Section 5057, Rev. Laws 1910, gives such officer power to punish a witness for contempt in refusing to answer as a witness, or to subscribe a deposition, when lawfully ordered. These identical sections were under consideration in 1898 in the case of Ex parte Abbott, 7 Okl. 78, 54 P. 319, wherein it was held that a judge of the probate court had power to punish for contempt a witness who refused to be sworn or to give his depositions. It is insisted that under section 1, art. 7, of the Constitution the judicial power of the state is vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions, or boards inferior to the Supreme Court as may be established by law, and therefore the judges of courts of record have no judicial powers, other than those mentioned in subsequent sections of the Constitution. In this argument we cannot agree. The wording of the Constitution is practically the same as section 9 of the Organic Act, which was construed in the Abbott Case. That section provided that the judicial power of the territory was vested in a Supreme Court, district courts, probate courts, and justices of the peace, and in construing that section this court held that such courts and the judges thereof were by the Organic Act vested with judicial power, and it was further held that where, by constitutional provisions, judicial power is vested in certain courts, the judges thereof may, by legislative enactment, be authorized to perform acts that are in their nature judicial.

The evidence offered by the plaintiff disclosed that the officer taking the deposition had jurisdiction of the person and the subject-matter, and where this condition exists, a judicial officer is not liable in a civil action for false imprisonment for an erroneous exercise of judicial power. Comstock v. Eagleton, 11 Okl. 487, 69 P. 955; Flint v. Lonsdale,

41 Okl. 448, 139 P. 268. But it is contended that there was not only proof of an act in excess of jurisdiction, but proof that such act was done willfully, knowingly, maliciously, wantonly, and oppressively. From the evidence we are not willing to say that such proof was made. If it be conceded, however, that the proof is sufficient to sustain the contention, the position is not well taken; an action will not lie against a judicial officer for a judicial act when there is jurisdiction of the persons and the subject-matter, though it be alleged and proved that such act was done maliciously, or even corruptly. In Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646, in discussing the question, Mr. Justice Field said:

"If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons, sufficiently irritated to institute an action against a judge for his judicial acts, would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action."

And, again, in the same opinion, it is said:

"The exemption of judges of the superior courts of record from liability to civil suit for their judicial acts existing when there is jurisdiction of the subject-matter, though irregularity and error attend the exercise of the jurisdiction, the exemption cannot be affected by any consideration of the motives with which the acts are done. The

...