Johnson v. MortonJohnson v. Morton
- Reporters:
- , ,
- Before:
- McGrath
Plаintiff was arrested upon a capias. He moved to vacate the order to hold to bail and quash the writ on the ground that the affidavit was insufficient. The motion was denied, but, upon application to this-Court, a mandamus was issued, direсting that the writ be vacated and the proceedings quashed. Plaintiff now brings trespass for false imprisonment, and the sole question is whether the order to hold to bail, granted by the circuit judge, protects the party making the affidavit аnd applying for the issuance of the writ, when no malice or lack of probable cause is averred or shown.
Section 7302 of our statute provides that certain actions, named, arising upon contract, may be сommenced by capias, when the plaintiff, or some‘one in his behalf, shall make and attach to the writ an аffidavit stating certain facts. Section 7304 provides that “personal actions may be commenced by capias ad respondendum in cаses of claims for damages, other than those arising upon contract, express or implied, where an оrder for bail shall be. indorsed on the writ by a judge of the court from which the writ issues or a circuit court commissioner;” and section 7305 provides that “such order shall be made only upon the affidavit of the plaintiff, or some persоn in his behalf, showing the nature of the plaintiff’s claim.” Under sections 7304 and 7305, the plaintiff is required simply to set. forth the nature of his claim, and the judge or circuit, court commissioner judicially determines whether the case, made comes within the exceptions named in the Constitution, and whether it will warrant the indorsement and issuance of the writ. The statute expressly confers upon the judge or circuit court commissioner authority to act, and power to determine the question.
The judge to whom application was made for the order-had ample power to еntertain the application, and, upon the proper affidavit, to indorse the order. An affidavit *5was prеsented in which defendant here set forth, in substance, that plaintiff here was employed as agent of affiant tо sell goods and make collections; that as such agent he had collected sums of money which he had nоt accounted for; that he had falsely and fraudulently pretended that he had accounted for all monеys received by him; that settlements had been made with said agent upon the faith of his representations; that he hаd not accounted for all moneys collected; that he had collected large sums of money, and fraudulently kept back and concealed the same, •and converted the same to his own use, intending to chеat and defraud his employer, and to embezzle the same; that affiant obtained his knowledge that moneys had bеen collected and not accounted for by comparison of the statement of moneys collеcted, made by said agent, with the statements made by customers; that it also appeared, by many receiрts given by said agent to customers, that largo sums of money had heen collected by said agent that said ••agent hаd not accounted for; that it also appeared, by admissions made by said agent to affiant, that many accounts had been collected by said agent that he had not reported or accounted for. It is evident that this affidavit lacks in detail and in certainty, and for that reason it is insufficient; but it cannot be said that it sets forth no facts or circumstances indicating fraud or breach of trust. It is true that this Court, by a mandamus, directed the circuit court to quash the рroceedings; but that was a proceeding in the nature of a review of the action of the ■court belоw, and there has been no adjudication by this Court that the proceedings were absolutely void. As is said in Miller v. Brinkerhoff, 4 Denio, 118, 120:
“ When certаin facts are to be proved to a court of, special and limited jurisdiction as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be deсlared void in whatever form the question may arise. * * * But when the proof has *6a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusivе, the process will be valid until it is set aside by a direct proceeding for that purpose. In one case thе court acts without authority; in the other, it only errs in judgment upon a question properly before it for adjudicatiоn. In one case, there is a defect of jurisdiction; in the other, there is only an error of judgment. Want of jurisdiction mаkes the act void; but a mistake’ concerning the just weight and importance of evidence only makes the аct erroneous, and it will stand good until reversed.” Staples v. Fairchild, 3 N. Y. 41; Spice v. Steinruch, 14 Ohio St. 213; Taylor v. Moffatt, 2 Blackf. 305; Hauss v. Kohlar, 25 Kan. 640; Forbes v. Hyde, 31 Cal. 342; Benson v. Bennett, 25 N. J. Law, 166; Harman v. Brotherson, 1 Denio, 537; In re Faulkner, 4 Hill, 602; Mills v. Collett, 6 Bing. 85; Brittain v. Kinnaird, 1 Brod. & B. 432; Sewart v. Hawley, 21 Wend. 552; Tompkins v. Sands, 8 Id. 402; Easton v. Calendar,, 11 Id. 90; People v. Collins, 19 Id. 56.
Mr. Cooley, in his work on Torts (2d ed. p. 548), lays down the rule—
“ That, if the jurisdiction deрends upon the facts, and these are presented to a court having general jurisdiction of that class оf cases, and the court decides that it has authority to act, and proceeds to do so, this decision рrotects, not the officer merely, but the party also.”
When an application is made to a judge to hold to bail, it is his duty to hear and investigate; and if the affidavit sets up facts and circumstances tending to show fraud or breаch of trust, thus bringing the case within the exceptions of the Constitution, authority to act depends upon the facts, аnd the determination of the judge must be held to have all the qualities of a judicial decision, and as such protects the judge, the officer, and the party.
The judgment, which was for defendants, will therefore be affirmed,
The other Justices concurred.