Green v. Talbot , 36 Iowa 499 ( 1873 )

Day J.

— On the 3'lst of May, 1872, the defendant, who was mayor of the town of Nevada, fined the plaintiff $5, for a violation of section 4, of ordinance 32, and imprisoned him forty-eight hours in the jail of the county for non-payment of the fine. For this imprisonment the plaintiff sues.

Section 4 of said ordinance is as follows: “ It is hereby made the duty of the marshal to notify all owners or keepers of dogs and sluts not registered, and if said owner or keeper refuse or neglect to register said dog or slut within ten days after the service of said notice, he shall be liable to a fine of not exceeding $10 and costs of suit.”

The mayor erroneously supposed that authority to imprison was conferred by section 39 of ordinance No. 6 of said town, which is as follows: “ Whoever shall violate any ordinance

of this town when no punishment therefor is provided in such ordinance, shall be adjudged to pay a fine of not more than $20, and to stand committed until paid, or the defendant is discharged by due course of law.”

The court instructed the jury in substance that if defendant believed that said section 39 authorized him to imprison plaintiff, and he acted in good faith, under such belief, without malice, he is not liable. Plaintiff assigns the -giving of this and similar instructions as error.

This case is not distinguishable in principle from Londegan v. Hammer, 30 Iowa, 508, in which the liability of judicial officers for erroneous decisions is discussed, and the leading authorities are reviewed. In that case the plaintiff was placed upon trial before a justice of the peace on a charge of willful trespass. On the trial it appeared that the property injured was of less value than $50. It was therefore the duty of the justice to try the cause and render final judgment.

The justice, however, made an order that he enter into a recognizance to answer at the next term of the district court,, and, in default of such recognizance, sent him to jail. In an action against the justice it was held that he was not liable unless he acted maliciously or corruptly. • In that case, as in this, the subject-matter of the controversy and the persons of the accused were within the jurisdiction of the court. In that case, as in this, the court had power to render a particular judgment. And in that case, as in this, the court mistook the law, and rendered a judgment which it had no right to do.

All the reasons for exonerating the justice in that case apply with equal force to the mayor in this. We deem it unnecessary now to repeat or add to the arguments there advanced, but, following that decision, we hold that the instruction given is correct, and that the judgment should be

Affirmed.