9 Colo. App. 11 | Colo. Ct. App. | 1896
delivered the opinion of the court.
It is contended that the proceeding was illegal and unwarranted ; that no notice was given plaintiff to appear and show cause,—no opportunity for him to assert and establish title to the property. The course pursued does seem summary and arbitrary, purely ex parte, based upon the affidavit of the mortgagee alone, and an order made for the delivery of the designated property within forty-eight hours, regardless of how it came into his possession or his right to retain his possession. But those questions are not before this court for review. The estate of Hagar was in process of administration. The assets of the estate were in the hands and control of the court. Application had been made and leave obtained to borrow the money and secure it by chattel mortgage. It was the duty of the court to see that the assets of the estate were not dissipated or improperly disposed of. How it should have been exercised is another question. As far as gleaned from the record, when plaintiff was brought before the court, there was no attempt at justification. As far as appears, the only defense was the interposition of the motion on a question foreign to the proceeding for contempt, where the duty imposed was to purge and exonerate himself from the charge of contempt. This might have been done by showing that the property was not under his control or in his possession, and had not been after the execution of the mortgage—in the nature of a disclaimer; or he might have
The law in regard to contempt of court is probably about as well defined as other branches of jurisprudence, yet in each case it is greatly controlled by the facts and circumstances of the particular case. Section 3565, Gen. Stats., is as follows: “If any executor or administrator, or other person interested in the estate, shall state upon oath to any court that he believes that any person has in his possession, or has concealed, or embezzled, any goods, chattels, moneys or effects, books of accounts, papers or any evidences of debt whatever, or titles to land belonging to any deceased person, the court shall require such person to appear before it, by citation, and may examine him on oath touching the same, •and if such person shall refuse to answer such interrogatories as may be propounded to him by the court or person interested as aforesaid, or shall refuse to deliver up such property or effects as aforesaid, upon requisition being made for that purpose, by an order of the said county court, such court may commit such person to jail until he shall comply with the order of the court therein.”
By the statute it appears that before making an order to turn over the property, the court shall cite the party before it and examine the party under oath, etc. This clause could only be operative against the charge of concealment or embezzlement or secretly remaining in the possession, which was not this case. There was no statement of belief making the inquisition necessary. As stated above, when served with the notice to deliver the property within forty-eight hours, he had that time in which to appear and show why he should not do it. The arrest without citation may have been irregular. It was summary, but wás certainly within the general and inherent power of the court regardless of the
' The county courts of this state are superior courts of general jurisdiction, and without the statutory provision the judge would have the same power to punish for contempt that pertains to the highest tribunal. See Martin v. Force, 3 Colo. 199; Gomer v. Chaffe, 5 Colo. 383; Hughes v. Cummings, 7 Colo. 138; Hughes v. McCoy, 11 Colo. 591. The latter case is almost a counterpart of the one under consideration. Suit was brought by a private person against the county judge for damages alleged to have been caused by his judicial acts. The supreme court said: “ In such determination the judge misinterpreted the law, and the order made and entered by him in the premises was unwarranted.” The court further said: “As to whether the judge’s acts, under the said provisions of our code, were simply erroneous or were in excess of his jurisdiction, we need not and, therefore, do not ■determine. It is evident that he was acting as judge in the premises, and by virtue of the statute mentioned, was so acting in a subject-matter of which he had jurisdiction. According to the weight of- authority, the judge so acting is not liable to a party aggrieved thereby, even if the acts so done were in excess of his jurisdiction, as excess of jurisdiction is distinguished from entire want thereof. * * * It has been determined by this court that our county courts are courts of superior or general authority.” “ A court with general jurisdiction is not an inferior court because an appeal may be taken from its decisions to a higher court.” Newell on Mal. Pros., sec. 50. And see Hawes on Jur., sec. 258; Harvey v. Tyler, 2 Wall. 328. County courts of the state of
It may be as well to say, in passing, that the fact that the plaintiff was taken by writ of habeas corpus before a judge of the district court, and discharged, adds nothing to the supposed cause of action. The authority of the district court to review proceedings for contempt in another tribunal of general jurisdiction is very questionable, but we are not called upon to decide such question of jurisdiction and will not decide or discuss it; but it must be borne in mind that th'e district court or judge did not review the case by virtue o£ an appellate jurisdiction, but reviewed the acts of the county court upon an application for habeas corpus, reversed the judgment and discharged the plaintiff. Further comment is unnecessary, when it is considered that both are superior courts of general jurisdiction.
From the earliest organization of modern courts in England to the present time, the law has been that judges of superior courts could not be made liable in suits for damages brought by private persons for official acts as judge, even when the acts complained of exceeded his jurisdiction. The English books announce the rule from the time of Edward III., A. D. 1354, down to the present time. See 1 Rolle Abr. 92, 1431; Baggs’ Case, 11 Coke, 93b, 1616; the last leading ease I have found being Scott v. Stansfield, L. R. 3 Exch. 220. Such has been declared the rule of law in the United States
It is clear upon the authorities that no action for damages could be maintained against Judge Wright. Although a great many suits of the same character have been brought in different courts, I find no instance where a recovery was allowed.
The suit against the judge not being maintainable, the suit against Esther M. and S. B. Austin, who were joined as defendants, and who made the affidavits upon which the proceedings were instituted, must also fail. The other defendants were sureties upon the judge’s official bond. It is contended that plaintiff in error could not in any case maintain an action upon the bond, that it must be brought by the people; also that if the action could be maintained against the judge, it could not be against his sureties. In our view of the case, it is not necessary to determine these questions. The complaint stated, as shown, no cause of action. The judgment sustaining the demurrer was correct and must be affirmed.
Affirmed.