Harrison v. Redden , 53 Kan. 265 ( 1894 )

The opinion of the court was delivered by

HortON, C. J.:

The only question before us for our consideration is, whether the petition states facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. We are not called to pass upon a question of morals, or of professional or official ethics. There is no allé-gation in the petition that William Harrison was a resident of the state, or that he had any real or personal property in the state. It is alleged that he was possessed of real and personal effects of the value of $7,000, but where it is situated is not stated. In the action commenced on the 12th of October, 1887, in Butler county, by the plaintiff against William Harrison, for alimony, there was no prayer for an injunction or restraining order.

We think, upon full consideration, that the plaintiff cannot recover. If the action were against the defendant in his official position as judge, (which we do not think it was,) then there could be no recovery, because a judicial officer is not liable in a civil action for any judicial act done in his jurisdiction. (Randall v. Brigham, 7 Wall. 535; Weaver v. Devendorf, 3 Denio, 120; Cooley, Torts, 1st ed., 380.) If we .consider that the defendant is charged as a private person only, then there can be no recovery, because of the uncertainty of the plaintiff’s damage, the injury complained of being too remote, indefinite, and contingent. (1 Suth. Dam. 51; Lamb v. Stone, 11 Pick. 527; Bradley v. Fuller, 118 Mass. 239.) The defendant was not required in his private capacity or as a citizen to render any assistance to the plaintiff concerning the prosecution of her action; and, if he advised Harrison, the husband, to withdraw from the jurisdiction of the court and to dispose of his property, we perceive no way of determining what damages could be allowed as a clear and necessary consequence of such advice. The actual damage from defendant’s conduct is not capable of legal proof.

If service had been obtained upon William Harrison on the 12th of October, 1887, he could have disposed of his property as well after service as before. Again, if William Harrison fraudulently disposed of any of his property at any time, the plaintiff might have prosecuted successfully proceedings in aid of execution, or brought her action to set aside any fraudulent conveyance. There is no allegation in the petition that the defendant secreted any of the real estate or. personal effects of William Harrison, or obtained any benefit therefrom, and, therefore, this case does not come within the rule declared in Penrod v. Morrison, 2 Penr. & W. 126, in which it was decided that “ where A., being indebted to B., held certain choses in action which he assigned to C. without consideration, and then took the benefit of the insolvent law, that 0. was liable with A.” In that case C., advising and aiding in the wrong, received a pecuniary benefit. The plaintiff was injured to the amount of the property received and secreted by C., and the actual damages could be legally ascertained. The value of the property of which C. received pecuniary benefit could be proved legally. But the doctrine of that ease is denied in Wellington v. Small, 3 Cush. (Mass.) 145. In this case it is sought to recover from the defendant the judgment rendered against the husband, William Harrison, when the plaintiff has not exhausted her remedies to collect the judgment, and when it is not alleged that the defendant is possessed of or has control of any property now or formerly owned by the husband. The judgment of the district court will be affirmed.

All the Justices concurring.