Judicial Immunity for Acts Without Jurisdiction

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1 Fordh evie w aw R am L | Volume 7 Issue 1 Article 3 1938 ial I mm unit y for Ac ts W ithout J ur isdic tion Judic Jay Leo R othschi ld Recomme nded Citation ordham , 7 F iction . 64 (1938). ithout Jurisd L. R or Ac al Immunity f Judici Jay Leo Rothschild, ev ts W ol7/iss1/3 .lawnet.fordham.edu/flr/v Available at: http://ir This Article is brought to you for f ree and ope n access by FLASH: The F ordham Law Archive of S en accepted for istory. It has be nd H cholarship a ized editor of FL ordham Law Archive of S ASH: The F mation, ordham Law Review by an author e infor istory. For mor nd H cholarship a inclusion in F please contact . aw.fordham.edu [email protected]

2 WITHOUT JUDICIAL FOR IMMUNITY ACTS JURISDICTION LEO ROTHSCHILDt JAY immune. error. thus done, they are For harm the commit often Judges man is to be and requires no less, if justice between man policy Public instruments fear consequences to the of personal administered without As said by an English court:' "It is essen- judicial of administration. the judges who the appointed to administer are all tial that in courts the protection of the law under should permitted to administer it law be pro- This favour and without fear. without and independently freely, of or benefit a malicious or protection the is law not of the vision for that is it the benefit of the public, whose interest for but corrupt judge, functions their with inde- exercise should at liberty to the be judges could a so judge consequences. of fear without and pendence How hourly in daily and fear of an action being he his if office exercise were jury a to of having question submitted and the against brought him, not was or judicially had commented was whether which on matter a he some be must there him?" On the other hand, before the to relevant case been has line The acts for immunity done. erroneously limit judicial to where jurisdiction ends. drawn at that point begin, Where does it What is its nature? what is jurisdiction? But itself is often an abstruse problem, end? Jurisdiction and it where does legal complicated statutes and fine-spun and on conflicting predicated the judge authorized to preside over the court? Is Was So: theories. it? different from the judge who presides over something court the the judge, jurisdiction? Was the court, as distinguished from Has the it make any difference that void merely or voidable? Does act judge's motives? or malicious Is it sig- motivated corrupt judge by the was jurisdic- limited or general was one of involved, the that nificant court tion? an for lie to where responsibility shall as problem the Underlying inquiries, is the question as to whether answer to all of these unerring answer, proper disposition, at his own peril. The the judge make shall compromise a practical between represents policy, by dictated public a that resulting in the anomalous situation concepts, legal conflicting may, nevertheless, of void judge, lack acts jurisdiction, whose are for sufficient had he fact, responsibility because, in legal immune from be that which is that purpose; and, for because furthermore, jurisdiction Bar. York New the Member t of 237 Baldwin, v. App. Ex. 223 (1868). Cf. Karelas 3 R. L. 220, Scott v. Stansfield, I. 1932). (2d Dep't 518 Supp. N. Y. 265, 261 Div.

3 1938] IM1UNITY JUDICIAL WITHOUT JURISDICTION 63 be valid as against litigation, may still a the parties to between void, as shall be or not a judge whether because and, finally, parties; third to he on whether purported depend may acts, his for void responsible jurisdiction. or limited general of court act in a the decide to authority is "Jurisdiction that Holmes said Mr. Justice 2 circuit court had jurisdiction he held that Thus, a case either way." even alleged patent case in an questions presented the to determine enough that It was actually presented. was patent question though no by said as Or, question. patent was a that asserted there the plaintiff 3 deal to matter is the power the subject of "Jurisdiction court: federal a any in particular facts hear the to abstract question, the general with or they not whether determine to and question, to this relating case, to confined not is It that of power. exercise the invoke to are sufficient but action, a good cause of constitute facts particular the which cases in in power vested general scope of the within the every issue includes it ques- abstract the with deal organization, to of law the by its court, the It correct decisions. limited to making this jurisdiction is tion. Nor of its scope within the every issue the court determine to empowers whether evidence, the and view of the law own its to authority according ren- so or decision judgment wrong; and every or right is decision its by it, unless reversed to upon the parties conclusive and final dered is for fraud." appeal, or impeached of error or writ 4 Court of the New York of New York, Gaines City v. in So, also, belief that the "a mistaken proposition the that to subscribed Appeals mistake other any as same plane the on stands jurisdiction, has court intricate... and obscure often jurisdiction are of Questions law. of distinction that calls for a the rule of nothing in the reason is There the of of the jurisdiction respect of error in consequences the between of suitor's a other in respect error any of and consequences the court "dismissed that an action with the argument presented When rights." never had if it as sense same the in is a nullity jurisdiction want of for extreme "an was such that answered court the all," at begun been of an the consequences of at least some has action an view." "Such For pur- some competent jurisdiction... of in court a begun action the though pending, as an action of may speak we therefore, poses, was said as merits."5 And, its adjudicate jurisdiction to without court is adjudge to power subject is matter the of Hunt "Jurisdiction HuntO: v. in (1913). 25 22, S. and 228 U. Co., S. Kohler The v. Die Fair 2. Board of Cf. A. Sth, 1S94). Fed. 316, 318 (C. C. S. F. Ry., 60 Louis & St. v. Foltz 3. 1397). (C. C. A. Sth, 567 v. Platt, 79 Fed. Commissioners 594, (1915). 595 E. 539-540, N. 533, 109 215 Y. N. 4. 540, 109 N. E. at 596. 5. Id. at (1873). N. Y. 217, 229-230 6. 72

4 7 [Vol. REVIEW FORDHAM LAW the dependent upon and is not question involved, general concerning the or which in a particular case, arising, which may of facts appear state general question ... So that there have arisen, to claimed is under that connec- in this 'subject-matter' the to phrase meaning general a more is is the polver It facts. of state upon a particular to act power tion, than and to abstract question, speak, the so to and general, the upon act to call for presented facts particular the whether adjudge and determine abstract power." of exercise the the still distinctions subtle leave nevertheless, generalities, But these varied with is a concept jurisdiction for, obviously, determined, be to First, give to jurisdiction: things three needed are "There meanings: juris- Second, ... the general subject-matter upon by to law act power case."' the of particular . Third, jurisdiction . person. the . of diction could, as of subject-matter, without jurisdiction a court, acting Clearly, a to as Similarly, conclusion. valid no at the parties, arrive between was re- such jurisdiction of where persons, lacking jurisdiction court of juris- decide questions to power the event, any even in And, quired. even the of facts to justify minimum showing a presupposes diction, of judging. process the of initiation the under- closely more to necessary examine becomes It, therefore, involved. types of jurisdiction the of various concepts theoretical lying the right to when it has subject-matter, of jurisdiction has court A of field the rights respect with to given individuals between adjudicate of has jurisdiction court Similarly, a arises. contioversy in the which rights, field of within such to adjudicate, the has it right when persons still is there And the court. before who the are persons to respect with power of the the i.e., contemplating jurisdiction, of a third conception and of subject-matter has jurisdiction or it whether not decide court to a litiga- the parties to as between of persons. Obviously, jurisdiction subject- of lacking in jurisdiction if are void, tion, judicial proceedings cannot It necessary). is jurisdiction such (where persons of or matter, juris- own its decide to power had court them that the important be to will do; jurisdiction actual than less Nothing was wrong. diction, and upon the depend civil rights whose of those rights the as to similarly, on court the was wrong made. That adjudication thus of validity the is immaterial. than jurisdiction,, case, other the issues in the of any are the Such been right. must court have jurisdiction, the But as to 8 the in viewing only is It attack. collateral on applicable principles Leggat, of Matter (1881). Accord: 410, 413, 415 N. Y. Cooper, 84 v. Devlin 7. E. 1009 (1900). Y. 437, 56 N. 162 N. whether i.e., attack, the upon nature of the view, dependent judicial difference The in 8. to readily come instances Familiar settled. and quite well-known is collateral, direct or 22 78, Y. N. Bernharth, v. 115 attachment. Haebler of with writs in mind, connection

5 1938] WITHOUT 6S JUDICIAL IMMUNITY JURISDICTION to its own immunity granting view of of point the court, from a of acts the third concept the parties, that as between void for personnel, acts its decide to and duty right, power, as embracing i.e., jurisdiction, of a on viewed, takes so Jurisdiction, material. becomes jurisdiction, own there may, the parties, between as Objectively, i.e., quality. subjective insofar i.e., subjectively, all. But, at been no jurisdiction have in fact, be should judge presiding the determine whether to necessary as it is jurisdiction. there was acts, void objectively for such responsible "sub- as of jurisdiction concept "immunity" this to refer we when But, it that is in the sense so only do that we remember must we jective," and criti- to examination itself which subjects itself system judicial the subject- of actual jurisdiction determining of purpose for the not cism, the least at was there whether ascertain but to persons, of or matter honesty or -Motives, malice, to act. whether determine to and duty power the of state mind of actual The no consequence. of purpose, are of the inquiry is this sense, In immaterial.' therefore, is, officer judicial of irreducible minimum seek is that we What subjective. by means no the requiring and process, judicial of the initiation the justifying facts, 924 Supp. Y. N. 84 360, Div. App. 35 v. Cook, Bloomingdale Cf. (1S9). E. 167 N. 675 E. N. 37 78, Y. N. Shea, 143 v. Murphy process. Service of 1898). Dep't (2d N. 163 124 E. N. Y. 122, 249 Corporation, Bay Bungalow Sheepshead v. Valz (1S94); 1935). Dcp't (let 415 Supp. Y. N. 503, 98 Div. Estate, App. 112 McGarren's re In (1928); v. McMurray foreclosure. in alleged upon defects predicated title, to as Controversies (ISS1); Crouter 84 N. Y. 622 v. Mangam, Ingersoll 175 (1876); Y. 66 N. McMurray, 122 202, Div. App. 137 Emmet, v. Taylor E. 7285 (1892); N. 30 Y. 133 55, N. v. Crouter, Dep't 1910). X. 66 Y. (1st Supp. the in mind that borne be it should deposition, this of the sufficiency determining "In of great that latitude and, therefore, collaterally attacked justice is tha before proceeding E. X. 42 269, 264, X. Y. 14S Rickard, v. Swart in." indulged be should construction (1896). 665, 666 to is intendment reasonable every with favor, and regarded be is to proceeding the '1... ... collaterally cas, this in as attacked, when support jurisdiction of in entertained be of queztion a upon even proceedings, these to extended be must indidgence liberal 'A ' n . . . rer ey than beneqcial a rather snare a render them not would if we jurisdiction, is it until valid, process will be incondusie, the be slight and may the proof although 94, S9, Bogardus, 49 Barb. Pratt v. for that purpose!' a proceeding direct by aside set and (1854) N. Y. 331, 341 11 v. Erwine, Van Alstyne from part in quoting 1867), 95 (N. Y. contains supra, Bogardus, v. 1847). Pratt Y. 118, 120 (N. 4 Denio Miller v. Brinkerhoff, valuable discussion. other by directly, attached when even of an information, sufficiency the not may test "We to applied a were formerly as correctness of technical standards and rules same the informa- the of attack on the sufficiency when the and, pleading especially, common-law v. Vittorio in'." should be indulged of construction 'great latitude made is tion collaterally v. Easton Accord: (1924). 914 913, 145 N. E. Y. 14S, 152, N. Paper 239 Co., St. Regis 1S42). Y. (N. 30 Hill 4 Faulkner, of 1333); Matter (N. 91 Y. Wend. 11 Calender, 231 ajf'd, 1930), Ct. (Sup. 599 Y. Supp. 23S N. SS1, Misc. 135 Callaghan, v. Gans 9. (1931). 136 E. 552, 177 N. N. 256 Y. appal dismisscd, 1930), (2d Dep't 735 App. Div.

6 7 [Vol. REVIEW FORDHAM LAW 10 a correct for It is judicial function. of incident it of as an exercise For be wrong. decision though his This, setting. a in act such judge to and-without process, judicial of the product inevitable an is error nevertheless-justice judges immunity and giving it, the of risk taking be paralyzed. would itself irreducible the what is as to inquiry the to us, then, This leads judicial the of the initiation justify to must appear which minimum be can that All measure. no is accurate there Unfortunately, process. a the of part belief, on justify to as appear must such facts is said that his judicial to exercise upon called he is that officer, judicial reasonable it. not shirk should and function, and of general courts between the distinction that point this is It at is said York, it New In considered. be must jurisdiction, limited of with respect to their power, as decide jurisdiction of limited courts that but presiding," of the judge risk at the persons, and subject-matter to are because they such risk, no take jurisdiction general of that courts 12 reason- The court. any in residing powers judicial all have to deemed can things, of in nature the jurisdiction, plenary with that courts is ing 3 decide must -- they authority' their of delimitation for to no statute look juris- of limited that courts for themselves-but jurisdiction their own 1 4 for that, power; of delegated the borders transgress must not diction not statutes, of creating phraseology precise is the the standard them, prin- and equitable of legal reservoir of an undefined vague outlines the ciples. judge A of than substance. rather degree, one is of distinction The he that show must necessarily powers, limited with court in a acting the subjective him to establish For those limitations. well within kept re- facts the precise show must he jurisdiction, of "immunity" concept process. judicial the initiate to jurisdiction of limited his court quiring 460 N. 63 Y. Institution, River Savings East v. Roderigas of cases two the Cf. 10. It where held that, supra, case, Roderigas second The (1879). Y. 316 76 N. and (1875) not were be to exercised, court was of the discretion upon which papers that the appeared The with jurisdiction. he acted indulged in that would be no presumption before him, the between the in facts that "difference the pointed out New York of of Court Appeals petition of the that judge trial by found is the and proved it was this in cases, is two that in never her, and saw that he never and surrogate, the presented to McNeil was not Mrs. the of the of nor Issuing of it, knowledge no actual and petition, had acted the upon fact had which blank a used the office, who in clerk by a was done business the that letters, Id. seal." surrogate's the and attached him, left with and the surrogate, by signed been 319. at E. N. 28 229, Y. N. 128 v. Vrooman, Austin (1878); 12 Y. N. 73 Benedict, Lange v. 11. 477 (1891). Y. (1878). 12 N. 73 Lange v. Benedict, 335 (1871); U. S. 80 v. Fisher, 12. Bradley 1. § VI, Art. CoisT., Y. N. 13. (1875). Y. 559 60 N. v. Liscomb, Tweed ex rel. 14. People

7 1938] JUDICIAL WITHOUT JURISDICTION 67 IMMUNITY judge presiding A court a jurisdiction, however, may of over general much upon though broader rely a setting, For limits. without not even the jurisdiction Court is regulated and limited by Con- of the Supreme judicial statute The concept of an unlimited stitution, and decision. jurisdiction, in all-powerful to act under all circumstances, ever reserve, justice if is non-existent only requires, practice. it is true in However, a that judge for of general of "immunity" jurisdic- court a jurisdiction, presumed, though rebuttable.'5 For his brother, sitting in a tion is court limited of jurisdiction, be in But the ultimate issue must it shown. is the same: Were there both cases, facts before the sufficient judge to the exercise of his judicial function in the field of rights require to his allocated court? to In of abstract the problem addition also must jurisdiction, there the difference between the court, as be consti- considered technically and judge who presides tuted, the it. court may be duly over The the judge fully empowered to act as such; yet unauthorized organized; to act judge of said court. The distinction as court and between judge 0 been court has well-recognized:' defined "A be: 'an is to organized with defined powers, meeting body, certain times and places for the at hearing decision of cases and and matters brought before other it, and aided in its proper business by its proper officers.' Matter Choate, 24 of N. C. 'A place where justice is judiciously administered. Abb. 430-433. consisting A properly composed of persons is of the judge - - court * and other proper officers, united or in a civil judges together organiza- invested by law with the and tion, for the adminis- functions requisite of justice * ::* * tration court is clearly an organization invested by The law certain functions for the administration of justice'." with does to a court does or that not have jurisdiction, is Therefore, say unconcerned with any conclusion utterly may be reached as to which whether presiding over a court a judge empowered to decide whether is he has jurisdiction of either subject-matter or of persons, and to act accordingly. It very well be that a court has jurisdiction of subject- may presiding and but that a judge, persons, over matter of was not it, to that duty, and that, therefore, assigned personal acts were coram his non And it may also be judice." a justice is acting entirely within that the authority vested in him, but through a court which is not entitled in to the subject, as, for instance, on cases in which extraordinary act 15. Ibid. 16. See People v. Rotolo, 61 Misc. 579, 581, 115 N. Y. Supp. S54, 855 (County Ct. 190S). Matter of Jacobs v. Steinbrink, 242 App. 17. Div. 197, 273 N. Y. Supp. 493 (2d Dcp't 1934).

8 7 [Vol. REVIEW LAW FORDHAM held to their acts and organized, been have Court Supreme the terms of 18 them. upon made were attacks when void be con- to justify these will be found authorities the of An examination princi- the basic formulate to part, failing for the most though, clusions, actual them. is not the It stated as we have which involved, are ples requiring facts sufficient of presence the judge, the of but jurisdiction for test subjective affords the which jurisdiction, own to his on pass him acts, his of validity the be what of may irrespective his own immunity, of courts both is the same, for test And this as between the parties. jurisdiction. limited and general 0 Appeals of the Court Benedict, v. Lange case of Even in our leading juris- courts of general over presiding of jifidges immunity the extended limited of a court over the presiding so judge in which a case diction, to the in and of persons subject-matter of had both jurisdiction jurisdiction, pre- so judge, that the it considered because so did it And case. particular benefits the receive involved, should there court circuit siding over the of rather than of general jurisdiction, to courts applicable rule the of jurisdiction, courts of limited to normally applicable be which that would That was an "inferior" court. was not really court circuit because the give to order in case, go, in the Lange obliged was to far court as as the defendant. the to immunity gen- of courts The distinction between general tendency. is Such the differ- for the reason fundamental lacks limited of jurisdiction, and eral in a period of purpose, served its has It arbitrary. is entirely and ence, essence, is the its be and, in all judges should rule for The transition. presiding as the as judge, he act did, did he i.e.: In whatever same, of of the class cases to determine constituted duly of officer a court judicial his of incident as an and, was one, particular the case which to his own power decide to upon called he was function, exercised, so the as void act, between an in resulted may he did, have act? What the Thus, immunity. him complete grant enough to yet valid parties, jurisdiction lacks he though may be immune, judge a clear that are cases persons. of 2 citing without an attorney disbarred judge " a in Bradley v. Fisher, So, sued the attorney heard. The to opportunity be an him giving or him jurisdic- "... where immune: judge was the that court held judge. The court or the in the judge by law invested is matter the subject over tion Y. N. of Richardson, 247 697 (1864); Matter U. S. States, 117 United v. 18. Gordon Y. N. App. 177 164 Div. 663, of Mitchell v. Cropsey, (1928); E. Matter N. 655 401, 160 Y. N. 166 535, Sawyer, 179 App. Div. Matter McIntyre of v. Dep't 1917); (2d 336 Supp. Dep't 1917). Supp. (1st 631 N. (1878). 12 73 19. Y. (1871). 80 S. 335, 352 20. U.

9 1938] JUDICIAL WITHOUT JURISDICTION 69 IMMUNITY he holds, manner which the in which and extent shall jurisdiction the be exercised are questions generally as much for determination his as any other questions involved although the in case, upon the correctness of these his determination in the particulars validity of judgments his Ackerly In may depend." Parkinson'-which v. is the leading English case Vicar the on subject-the General of the Ecclesiastical Court had attorney excommunicated an failure his for to duties of accept the ad- ministration of an intestate's estate. Service of process on the attorney The was wholly void. the judge that held court was not liable. Both of were cases in these cited case this leading the in state, Lange v. Bcne- - in dict, was it that which held judge a district court a of the United of States, who presided over had circuit court, a was he immune, though had illegally the plaintiff sentenced (defendant criminal a in proceed- ing, before plaintiff in the to imprisonment, court) federal so that de- fendant's judge-as later act as the declared by Supreme the Court of United States-was void. The reasons were stated these: "It general abstract is the which is the subject-matter. thing The power inquire and to whether adjudge facts the each particular of case that make case part or an instance a general thing-that of that jurisdiction power is of the subject-matter... "Let it be conceded, this point, that at law the now declared, is the that act of the defendant was without authority and void, yet was was not so it plain as then to have been beyond the realm of judicial discussion, deliberation and consideration, as from the is apparent four fact judges, that other the than acting as defendant, judges, in with agreed have him the his view of law. was, "He in fact, sitting in the place he of at justice; was very of the time the a he was bound act court; duty to the public by his the plaintiff to and to pass as such, upon the growing out question of facts presented the him, to a court to adjudge and as case arisen a had whether it was the demand in which of law, that on the vacating the the unlawful and of sentence erroneous or judgment of another sentence the court, could or judgment be pronounced the plaintiff. upon So to was a judicial adjudge act, as a judge, as done a court; though adjudication the erroneous, and was the upon act it based was authority without and W"here jurisdiction void. over is invested the subject law in the judge, or by the court which he in holds, the and extent manner which the in be exercised jurisdiction shall generally as much are questions for his determination any other involved as the case; although upon in the correctness of his determination in those particulars, validity of judg- the his may ment depend. (Ackerly v. Parkinson, For such an supra). a act, person as judge therein acting not liable to civil or is criminal action. The power to '' protects, decide though the decision be erroneous." 21. 3 Al. & S. 411, 105 Eng. Reprints 154 (1815). 22. 73 N. Y. 12 (1878). 23. Id. at 28, 32-33.

10 7 [Vol. REVIEW FORDHAM LAW 24 Similarly, Gans v. in Callaghan, court the held that a of the justice Supreme was Court immune, even was though it he that alleged acted maliciously. No question of actual or apparent in- was jurisdiction 25 volved. In Little v. Moore, brought action an was defend- against two ants. them One of before appeared the justice, and confessed judgment on a note purporting have been signed to defendants. both by Upon this confession, entered the justice and judgment issued against execution both defendants-actually the issuing execution himself. The defendant had who not judgment, confessed asserted justice that the acted had maliciously, to sued and recover damages. held The court the that jus- 6 tice was immune. In v. Langen Borkowski," it appeared a judge that indi- an adjudged to vidual be in contempt, him. and imprisoned When was suit brought against the judge, the highest Wisconsin of court assumed the that by process contempt the which proceeding initiated, was was and void, that, accordingly, jurisdiction no person of the individual the of had obtained. Yet, been the judge was held immune. to be In McCall v. 2 8 Cohen, a justice of the peace had caused a judgment to be entered void. was which that held was It immune he was responsibility from connection in even therewith, no though jurisdiction the person of of had defendant the been obtained. The older authorities the reached same the result, upon "color of theory of jurisdiction." The New leading often York case, to referred authorities, in the is 2 9 Miller v. Brinkerhoff, in which said it was that proof "when the has tendency legal a proper a to out make case, all in for parts, issuing its -the process, the although then, may slight proof be inconclusive, and the be will process until it is set valid by aside direct a proceeding for that 3 0 ' 3 purpose Adams, In Miller v. ' court said: the "When the evidence the presented to court or officer has to a tendency facts prove the re-' quired be proved to jurisdiction, confer to decision the the protects Misc. 135 24. 881, 599 N. Y. 238 Supp. aft'd, 231 1930), Ct. (Sup. (2d App. Div. 775 Dep't 1930), dismissed, appeal 552, N. 256 177 N. Y. E. 136 (1931). Accord: Grove v. Van Duyn, J. L. 654 (1882). N. 44 25. 4 L. 84 (1818). N. 3. Compare 26. Shenson Shainin v. & I. Co. Y. 268 Inc., 567, N. (1935), 407 E. N. 198 which held in was it that, direct attack, on a confession by entered judgment was void, with Solomon v. Smith, Div. 816 248 App. 703, motion 1936), (1st Dep't leave denied, for 679 272 N. Y. which, (1936), in on collateral attack, the the Justice of Supreme who Court directed had the void entry the of nevertheless, judgment, was, held be to immune from liability. 188 27. N. W. 277, Wis. 206 181 (1925). 28. 16 S. (1881). C. 445 4 29. Denio Y. (N. 118 1847). 30. Id. at 120. Lans. 31. 7 Y. 1872), 131 (N. aff'd, 52 N. Y. 409 (1873).

11 1938] JUDICIAL WITHOUT JURISDICTION 71 IMMUNITY 32 3 3 Pratt party." court In also v. Bogardus, the the or officer, court and a protected from liability in issuing a warrant magistrate was held that "the on the ground that evidence upon which upon an of arrest affidavit, upon the call and sufficient to was issued colorable, warrant the was issuing of propriety the determining his exercise justice in judgment to 3 4 protected." be he should faith, good in acted having and process, 3 an upon affi- Hilts, judge order of arrest, the an v. In Landt issued held subsequently determined to be insufficient. It was was which davit authority the of his order, were justice and all who acted that the upon from liability, because the judge had jurisdiction of the subject- immune sufficient. In colorable case was made out, and that was matter, a and 3 0 a magistrate issued v. upon an affidavit Cochran, a warrant Bocock an to be invalid. In action against him for held was which subsequently were the held that even though was facts stated it false imprisonment, he which had the commission an offense over establish to insufficient of to were were positively sworn to and facts enough yet the jurisdiction, sufficiency, a of the justice, in passing upon their render the action one, to protect him from liability. and judicial 3 7 the the of justice a defendant, v. sued plaintiff the In Potter, Butler jus- the that and false imprisonment. It appeared trespass peace, for against the the confession of judgment, rendered tice a peace, of on against the plaintiff, by had issued execution and plaintiff another, argued was It by committed jail. was plaintiff the which of reason to than greater those allowed costs were that, plaintiff as the the inasmuch held that the court The trial execution statute, was void. by the appeal, void, and directed a verdict for the plaintiff. On was execution peace of the "was by the justice said judgment the issued court that the have decided that, where a an not a void judgment... We erroneous, has jurisdiction to issue an attachment, but proceeds erroneously justice 38 court is not, therefore, a he In so ruling, the trespasser." so, doing in 3 on Prigg v. Adams relied There, under facts substantially the same, whether far "the question was that the judgment was so it was said collateral action? that should take advantage of it void, this in party the it was only voidable by plea that but court the And that it was not; held 0 error. . . " In Griffin v. Mitchell, for there was again an action or 32. Id. 136. at 49 89 (N. Y. 1867). 33. Barb. Id. at 34. 95. Barb. 283 (N. Y. 1835). 35. 19 1884). Y. Hun 521 (N. 32 36. 1819). Johns. 145 (N. Y. 37. 17 38. Id. at 146. (1795). 2 Salk. 674, 91 Eng. Reprints 573 39. 40. 2 Cow. 548 (N. Y. 1824).

12 FORDIJAM 7 [Vol. LAW REVIEW imprisonment justice of the peace, who had issued execu- against false a confession on objection being taken that the tion of a judgment-the it did set forth the particular items of void, was judgment because not statement, connection therewith, verified, the demand, the nor was in 2 41 Butler law and Prigg" to cases, the the as the Referring required. "Upon said: court as it is here, whether the demurrer, the question was, void that the party should take advantage of it judgment was so far collateral this in that it was not, but court it action; and the held that 3 or error."' was only voidable, by plea 44 In it was sought to hold liable where recorder Ayers v. Russell, a wrongfully who of lunacy, the approved said: "The a certificate court recorder, the powers of a judge of a court of record. defendant, the had approval His the physicians was a judicial act. It certificate the of of to of issuing of a warrant for the arrest analogous an was an act the alleged criminal information If the information verified oath. by upon the statute, of the fills requirements is com- the magistrate's jurisdiction plete. But the incomplete in fact; some essential information be may statute in omitted; specified may the be be may magistrate the not law, or if learned, not always sound learned judgment; he in the in this and decides that a case information when, in fact at looks exists, law, and in there no he issues his warrant when he ought not, and is case; is that man who has committed the result a against whom crime, no and liberty. is temporarily deprived of his and no arrested crime is alleged, In case, the magistrate one aspect of the because the jurisdiction no had no jurisdiction to issue a warrant unless it appears that an law gives him committed and there is reasonable cause to believe that offense has been it. accused upon habeas corpus, ought judge, the committed A decide to had no jurisdiction to issue that warrant. Why, then, the magistrate the magistrate pursued by the be individual? cannot the injured Because, information was presented to him, it was his duty to decide when the duty He respecting it. his had jurisdiction of that what was question, his upon it was a judicial error. He had a duty to wrong and decision law in not punish him for a mistake the perform, and does do trying to ' 4 right." it 0 Harman in Again, officer allowed Brotherson, to bail v. an plaintiff affidavit which was presented to him. The court upon that an decided jurisdiction and matter the of not had "he because liable was the officer note supra. See 41. 37, 42. See note 39, sura. Cow. 548, 550 (N. Y. 1824). 43. 2 Hun 282 (N. Y. 1824). 44. 50 at 288. Id. 287, 45. Denio 46. 540 (N. Y. 1845). 1 537,

13 1938] JUDICIAL WITHOUT IMMUNITY JURISDICTION 73 acted judicially in making order; the and is it entirely that clear he be made cannot answerable trespasser a as for an in judgment." error In Buckley," v. Rush and in Calhoun Little;" v. where the judges acted 9 under ordinance, an the relying courts, upon v. Bradley Fisher, ad- hered the to rule that, if a judge, whether of general limited or authority, jurisdiction has the of subject-matter, liable is he not any mistake for which he may in make attempting to exercise authority his upon any individual. In other words, the only liability test of jurisdiction is of the subject-matter. They the state as follows: rule "... . the where court has jurisdiction of the subject-matter of the offense, and presiding the officer erroneously decides the that has court jurisdiction person of the committing it, commits or an act excess in his of jurisdiction, he will not ' be in liable a action civil damages." for The of effect these all cases may be summarized in the statement whenever that a court is "author- to ized adjudicate as to the existence of the facts entitling party the the to right, its so in act would doing clearly be judicial ... cer- It is tainly as clear, a rule, general that whenever the law confers right, and a authorizes an application a court to to of justice enforce that right, the proceedings upon an such application are be regarded to as of judicial a ,, ... nature The correct principle-applicable to all courts-and free from arbi- distinction trary between courts of general and limited of jurisdiction (though not stated involving case a in a problem of immunity), judicial 2 is summarized well by New the York Court Appeals, of follows: as "There is no branch of the law more difficult of solution than to define when and under what circumstances the proceedings inferior of well as superior as courts attacked, be may and when they are a protection to persons acting under them. They be may held valid when the question is presented in one and form, in invalid and another, they may protect persons some and not others. The books full are of decisions, some of which are conflicting, recognizing distinctions and refinements which render the subject intricate and perplexing with. to deal I have exam- ined the numerous authorities by cited learned the counsel engaged case this in and many others, and they somewhat are calculated to impress with one uncertainty the of the law. The apparent conflict, however, arises more the from difficulty of applying principles par- in ticular cases, in than principles themselves. I have neither the time nor 47. Me. 100 61 AUt. 322, 774 (1905). 48. 106 Ga. 336, 32 S. 86 (1898). E. 80 49. S. U. (1871). 335 50. v. Calhoun Little, 106 Ga. 336, 337, 32 S. E. 89 86, (1898). 51. Matter Cooper, of 22 N. Y. 67, 86 (1860). 52. Roderigas v. East River Savings Institution, 76 N. Y. 316, 320-321 (1879).

14 7 [Vol. REVIEW LAW FORDHAM review inclination nor do I think it profitable to do so. the to authorities, the pro- is settled. One are that that well rules general There some are attacked may be of jurisdiction, especially ceedings of courts, limited Another is jurisdiction subject-matter. the of over want for collaterally subject-matter, then the the jurisdiction of that if the court or officer has is conclusive jurisdiction or erroneous of irregular exercise that however stinted jurisdiction, but their courts a until reversed. have Surrogates' their jurisdiction. when protected, within are orders decrees and acting and subject-matter, may the general has jurisdiction surrogate the If of upon residence a exercise of cases depending that jurisdiction in variety of the parties upon the ques- the his decision after a hearing and like, exists or for the exercise of jurisdiction calling the whether tion case other words, it is enough if attack. In protected from collateral not, is 3 jurisdiction of the subject-matter."" general has he of current "This general rule is sustained by the authority, opinion continues: 53. The elaborate many distinctions and qualifications. An review of the are this but within rule East v. in 2 River & Hill's Notes, 987." Roderigas Cowen found will authorities be 76 Institution, Y. 316, 321 (1879). Savings N.

15 FORDHAM LAW REVIEW January, and November May Published h I NUMBER JI'.UARY, 1938 VII VOLUME issue, 75 cents Single year a $2.00 Subscription price, Fordham Law the School of Students Edited by the BOARD EDITORIAL Jr. W. RoGER MLuLI, Editor-in-Chief m. LESn McLAuv Al. on GEORGE GooDna, ARTUR Editor Editor Legislation Decisions Comment Editor Jom. B. Lzinz Scio ,in R. JonT CRoA., M. FRAsx Associate Decisions Editor Book Review Business Manager Editor NICoNE PJ. I. CAR2IELo JAcoBso; L. W%%T Fa.u-cisco LEox A. SCAVUo K. VxEIM- B. EvLyn- KYM- GERAGHT JAuas J. STo:nmr~moz D,%,=i L. ROBERT MERINO R. F. GRn-xsnI PAuL CTHERIN TroIANo LEox NizoEm H. HEItER A=T J. WOZ-3mu. JERO,=- Fa.'s A. O'Commui cis HLBERT, JR. Tnosss F. YoUm T. An=. J. O'M.'.uA - HUBERT C. IE CATHER HILY B3. WALTER KENNEDY JR. Wmr, Wxuimx R. Advisors Faculty Issue to this Contributor Student BmrsrT= RP%rH L. Yorh New Building, Woolworth General and Offices, Editorial TO Tins IssuE CON-TRIUTORS of School University of Mo-cov,, Diploma, 1914, Imperial Class Gsovsxi, First V.ADnm in lawyer and County Formerly Judge Georgetown University. 1935, Ph.D., Law; of Profeszor Congrz.-. of Librarian Law to Law Foreign the in Assistant Russia. =.Lr- Grn Author of Uswv School of Foreign Service. University, Georgetown Russian, Compilr the of v (1926). TEsTA==r (1923); PI,,,%TN SmAGO SUDOPROIZvODSTVA Govansa Fonmm. =E or or SERL PUBLICATIO:NS LIsT the of Russian section periodicals. and American foreign to numerous Contributor (1932). School Univer-ity, LL.B., 1924, Harvard A.B., University; 1921, Harvard S. LEos-qAR SLxz, York. New of State the Judicial Council of the Secretary Executive of Law. of of Law. of Author School University, New York Practice, Harvard in Lecturer and 237, Q. L. ComN. Study (1934) 19 Ne-ew Statistical A Yorb, in Summary Judgments articles. other Columbia 191S, LL.B., Columbia 1914, University; IA., 1912, A.B., RoTmscmrm, JAY Lxo Q. L. Coxa;. 19 (1934) of Swnmary Power Judicii1 Author Law. of School University, 26, . R and L. (1935) 10 ST. Jows's of Procedural Self-Denial Instance Strange A 361; other articles. those the of book review are or note, comment any article, expressed views in The FoRDEaL,.t L.w RVImw. and not those of the individual contributor

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