2 Kan. App. 591 | Kan. Ct. App. | 1896
One Cornelius Reed was charged in justice’s court with malicious trespass. Fred W. Casner was the complaining witness, and virtually conducted the prosecution on behalf of the state. On January 18, 1892, a trial was had, and the jury returned a finding of not guilty, and that the prosecution was malicious and without probable cause.
Section 18, chapter 83, General Statutes of 1889, an act regulating the jurisdiction and procedure before justices of the peace in cases of misdemeanor, provides that
“Whenever the defendant, tried under the provisions of this act, shall be acquitted, he shall be immediately discharged, and if the justice or jury trying the case shall state in the finding that the complaint was malicious or without probable cause, the justice shall enter judgment against the complainant for all costs that shall have accrued in the proceedings had upon such complaint, and shall commit such complainant to jail until such costs be paid, unless he shall execute a bond to the state, in double the amount thereof, with surety satisfactory to the justice, that he will pay such judgment within 30 days after the date of its rendition.”
Upon the return of the verdict and finding of the jury, the defendant was discharged, and judgment was duly entered against the complainant for the costs that had accrued in the proceedings had upon the complaint, and for his commitment to the county jail of Lincoln county until the costs should be paid. On the same day, Casner executed a written undertaking, with satisfactory security, which was approved by the justice, to pay said judgment within 30 days after the date of its rendition. Having failed to comply with the terms of the undertaking within the
The real question at issue is : Did the justice have any authority to commit the complaining witness, after having approved the undertaking above referred to, and after more than five months had elapsed since the rendition of the judgment for costs, and without previous notice of intention so to do? And if the justice had. no such authority, is he liable in a civil action for the actual damages resulting therefrom? The plaintiff in error contends that the undertaking given by Casner to pay the costs within 30 days was void for the reason that no obligee is named therein.
The court instructed the jury that
“ Under the facts, which are undisputed in evidence in this case, it becomes a mere question of law whether the arrest and detention of the plaintiff, Casner, under the commitment read in evidence, was lawful or not. And I say to you that his arrest and detention at that time was not authorized by law, as, after giving the bond in the case of the state of Kansas against Reed by Casner, and its approval by the justice, the justice could not legally issue a commitment.”
We think, under the evidence, this instruction was proper, and correctly stated the law applicable to this case. We also think that, after judgment has been rendered against a complaining witness, and he has executed a bond to pay the costs within 30 days after the rendition of the judgment, and such bond has
" Why the law should protect the one judge and not the other, and why, if it protects one only, it should be the very one who, from his higher position and assumed superior learning and ability, ought to be most free from error, are questions of which the following may be suggested as the solution : The inferior judicial officer is not excused for exceeding his jurisdiction because, a limited authority only having been conferred upon him, he best observes the spirit of the law by solving all questions of doubt against his jurisdiction. The rule of law, therefore, which compels him to keep within his jurisdiction at his peril cannot be unjust to him, because, by declining to exercise any questionable authority, he can always keep within safe bounds, and will violate no duty in doing so. Moreover, in doing so he keeps within the presumptions of law, for these are always against the rightfulness of any authority in an inferior court which, under the law, appears doubtful. On the other hand, when a grant of general jurisdiction is made, a presumption accompanies it that it is to be exercised generally until an exception appears which is clearly beyond its intent. Its very nature is such as to confer upon the officer intrusted with it more liberty of action in deciding upon its powers than could arise from a grant expressly confined within narrow limits, and the law would be inconsistent with itself if it were not to protect him in the exercise of this judgment.”
.The judgment in this case was rendered on January 18, 1892. Had no bond been executed, Casner could have been legally committed to the county jail at that time ; but a bond executed by him with satisfactory surety was accepted and approved by the justice, and from that time all authority to issue a commitment ceased. So far as respects this question, it is as if no judgment for the commitment of the complaining witness had ever been entered. That part
“ I have no doubt the magistrate in this case acted from an honest .belief that he was authorized to make*599 the indorsement on the back of the warrant; but, as to that, it was an excess of jurisdiction and wholly illegal, and therefore not a question of good faith, but of authority. The law watches personal liberty with vigilance and jealousy, and whoever imprisons another in this country must do it for lawful cause and in a legal manner.”
As the justice was without authority to issue the writ under which the defendant in error was taken into custody, he is liable in a civil action for the actual damages resulting therefrom.
It follows that the judgment must be affirmed.