Key Pittman and F. K. Pittman, for Petitioner.
H. R. Cooke and C. H. McIntosh, for Respondents.
By the Court, Norcross, J.:
This is an original proceeding in prohibition. The petitioner was a defendant in a case determined in the lower court, entitled John F. Davidson, Plaintiff, v. George H. Keyes, John Tabor, W. M. Doyle, and Louis D. Gordon, Defendants. The default of the defendant Louis D. Gordon, petitioner herein, for failing to appear and answer, was entered in the case, and subsequently judgment against him for $1,500 damages and costs was
entered. Petitioner was a resident of the State of Utah, and an order for service of summons by publication upon petitioner was granted by the lower court. Subsequently and in pursuance of such order personal service was obtained upon petitioner in Salt Lake City, State of Utah, in lieu of publication. After judgment was entered against petitioner, execution was issued to the respondent W. A. Ingalls, sheriff of Esmeralda County, who was proceeding to sell certain corporate stock of petitioner which had been attached at the time suit was instituted. Subsequently the petitioner, Gordon, appeared specially in the action and moved for an order to set aside and vacate judgment and to annul the writ of execution thereon, upon the ground that at the time the judgment was entered the court below had not obtained jurisdiction over the defendant Gordon. The motion was denied, and this proceeding was instituted to prohibit the lower court from further proceedings under the alleged void judgment upon the same groundswant of jurisdictionurged upon the trial court. Want of jurisdiction in the trial court to enter an order of service of summons by publication is based upon the alleged fact that the complaint fails to state a cause of action. (Victor Mining Co. v. Justice Court, 18 Nev. 22; Coffin v. Bell, 22 Nev. 169, 58 Am. St. Rep. 738.)
1. The defendants above named were bondsmen upon the official bond of one P. J. Gallagher, justice of the peace in and for Gordon township, Nye County. The complaint alleges the fact that judgment had been obtained by the plaintiff, Davidson, in a prior action against the said P. J. Gallagher and one W. T. Mattly for damages for unlawful imprisonment in the sum of $2,500, and that the said Gallagher and Mattly were impecunious and insolvent. The complaint under consideration in this proceeding was to obtain judgment against the bondsmen of said Gallagher, justice of the peace, as aforesaid, for the same alleged unlawful imprisonment. The official bond of said Gallagher was in the penal sum of $2,000 and upon which the petitioner, Gordon, became surety in the sum of $1,500.
The complaint alleged substantially that one W. T. Mattly wrongfully, maliciously, and without any reasonable or probable cause, appeared before the said P. J. Gallagher as justice of the peace and swore falsely to a pretended criminal complaint against the said John F. Davidson; that the said P. J. Gallagher, as such justice, with knowledge of the falsity of said alleged criminal charge, and at the malicious instigation, solicitation, and procurement of the said Mattly, did issue a warrant of arrest upon said complaint for said Davidson; that thereafter said Davidson was arrested and brought before the said justice, who then and there wrongfully, maliciously, and with intent unlawfully to deprive him of his liberty, did fix the amount of bail for said Davidson's appearance to said criminal complaint in a grossly excessive amount, to wit, the sum of $1,000, and did wrongfully and maliciously order that said Davidson furnish such bail in cash, well knowing that he would be unable to furnish the same in cash; that such justice of the peace committed the said Davidson to jail pending trial upon the complaint, and was by the constable lodged in the town jail and therein incarcerated for two days and two nights; that said jail was poorly constructed and defectively heated, and said Davidson suffered severely from cold, and contracted a severe cold, which caused him to become and remain sick and sore, and that owing to the loathsome condition of the beds in the jail and the extreme coldness he was unable to sleep, etc.; that two days after such commitment said criminal proceeding was wholly terminated and said Davidson discharged from custody.
It is the contention of counsel for petitioner that the complaint fails to state a cause of action, for the reason that Gallagher, the justice of the peace, was acting judicially, and when so acting the motives which prompted his acts cannot be a subject of inquiry in a civil action. It is contended that the criminal complaint upon which Davidson was arrested charged the commission of a misdemeanor; that the arrest thereupon was lawful and gave the justice jurisdiction of the person of defendant
and the subject-matter of the offense charged; that such justice had jurisdiction to determine that defendant should furnish bail as a condition of his release pending the trial of the charge against him, and that the amount of such bail was a matter in the discretion of the justice, and whether the amount was excessive or not cannot be questioned in a civil action for damages, and that, in any event, there are no facts alleged in the complaint that would justify the conclusion that the amount of bail fixed was excessive; that a bare allegation that the judge demanded cash bail will not be considered, for if plaintiff failed to present personal bail properly justified the court had no other alternative than to demand cash bail, and upon failure of plaintiff to give it to incarcerate plaintiff.
In Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652, Shaw, C. J., speaking for the Supreme Court of Massachusetts in a case of first impression in that court, said: It is a principle lying at the foundation of all well-ordered jurisprudence that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of others, should act upon his own free, unbiased convictions, uninfluenced by any apprehension of consequences. * * * He is not bound, at the peril of an action for damages, or of a personal controversy, to decide right in matter either of law or of fact, but to decide according to his own convictions of right, of which his recorded judgment is the best, and must be taken to be conclusive, evidence. * * * If it be said that it may be conceded that the action will not lie, unless in a case where a judge has acted partially or corruptly, the answer is that the losing party may always aver that the judge acted partially or corruptly, and may offer testimony of bystanders or others to prove it; and these proofs are addressed to the court and jury, before whom the judge is called to defend himself, and the result is made to depend, not upon his own original convictionthe conclusion of his own mind in the decision of the original caseas, by the theory of jurisprudence, it ought to do, but upon the conclusions of other minds,
under the influence of other and different considerations. The general principle, which excepts judges from answering in a private action, as for a tort, for any judgment given in the due course of the administration of justice seems to be too well settled to require discussion; and, as was said by Mr. Chief Justice Kent in the case of Yates v. Lansing, 5 Johns. (N. Y.) 282, has a deep root in the common law.' * * * The only remaining question is whether the case set forth in the plaintiff's declaration was within the jurisdiction of the defendant as a justice of the peace. Leaving out the epithets maliciously,' willfully,' falsely,' with which the declaration is so thickly sprinkled, and which cannot change or qualify the material facts, it is stated that the defendant, being a justice of the peace, issued a warrant against the plaintiff, on the complaint of one Burley, charging the plaintiff with a malicious trespass on his land. It is alleged that the complaint is false, feigned, and groundless, and that the defendant knew it; but this was the very question to be tried, and the defendant could not judicially know it till a trial. His private knowledge could not prevent the complainant from having it tried. It is ...