Aрpellant instituted this suit, in the County Court of Gonzales County, for damages alleged to have accrued by reason of the unlawful seizure and conversion of certain property belonging to appellant. The circumstances alleged were, in substance, that E. W. Walker was a justice of the peace, and in a certain suit wherein one C. P. Hopkins was рlaintiff and appellant was defendant, involving the title to a certain mule, rendered judgmеnt for said Hopkins and placed him in possession of the mule. That Hopkins was a nephеw of said Walker and was related to him within the third degree, and therefore that the judgment rendеred by Walker was void. The petition, in effect, charges a conspiracy betweеn Walker and Hopkins to gain possession of the mule, and prayed for damages in the sum оf five hundred dollars. It was alleged that the question of Walker’s disqualification was -presented to him in a motion for a new trial which was overruled. A general demurrer and special еxceptions were sustained and the cause dismissed.
It is provided by law that, “no justice of thе peace shall sit in any *47 canse where he may he interested, or where he may bе related to either party within the third degree of consanguinity or affinity.” Article 1538, Sayles Stats.
Vanfleet, in his work on “Collateral Attacks on Judicial Proceedings,” section 49, and the Suprеme Courts of a few of the States, take the position that judgments rendered by a judicial оfficer in violation of the statute as to relationship are merely voidable, but the great weight of American authority is to the effect that they are absolutely null and void. Hall v. Thаyer,
To the same effect are the decisions in Texas. Chambers v. Hodges,
The justice оf the peace having been, as alleged, related within the third degree to one оf the parties to the suit, his judgment was absolutely void, and want of jurisdiction could be shown in a collateral proceeding. And wliile appellant might have gained relief by appeal or certiorari, he was not compelled to do so. He had the right to proсeed in an independent action for damages received under color of the authority given by the void judgment. Ferguson v. Crawford,
The justice of the peace being disqualified frоm sitting m the case by the plain, positive terms of the statute, there was no scope fоr the exercise of any judicial discretion on his part. It is alleged that the fact of his disqualification was brought before Mm, and that he had full knowledge of the same, and there is exсellent authority for holding that he would be responsible for damages arising from Ms acts in rendering the judgment and issuing the writ by wMch the property was seized and converted. 2 Addison on Torts, 966, p. 178; Inas v. Winsрear,
TMs is, as said m Clark v. May, undoubtedly thе law when it is made to appear that the justice of the peace was cоgMzant of all the facts which constituted the defect of jurisdiction in the proceedings. Ju-. dicial officers will be protected in the fearless and impartial administration of justicе so long as they act within the scope of their jurisdiction, but when they knowingly act outside of аnd beyond their jurisdiction, their acts become a wanton and oppressive abuse оf authority, *48 and they will he held responsible as any other trespasser for the injuries arising out оf their acts.
We are of the opinion that the petition alleges possession if not ownership of the mule in appellant when it was seized and converted. Walker, the justice of the peace, and Hopkins, who claimed the mule, would be liable, if at all, as joint tort-feasors, and if the property belonged to appellant, would be liablе for trespass and conversion, but if the property belonged" to Hopkins, he would be liable in such damages as might arise from the trespass, together with such vindictive damages as thе circumstances might justify. The owner of property has no right to forcibly take possessiоn of his own property that is in the lawful possession of another. Dozier v. Pillot,
The judgment of the County Court is reversed and the cause remanded.
Reversed and remanded.