Burnham v. Stevens , 33 N.H. 247 ( 1856 )

Bell, J.^*

In the case of Yates v. Lansing, 5 Johns. 282, the liability of judges to answer to individuals affected by their decisions for damages, was considered; and it was there shown that from the earliest ages of the common law it has always been held that no judge is answerable in a civil action, on account of any judgment rendered by him as a judge. To this rule there is but one exception. If the judge has assumed to act as such in a case where he has no jurisdiction, his character of judge furnishes him no protection.

The jurisdiction of courts and judges, and others exercising judicial powers, may be very general or very limited; limited as to place, as to person, as to subject matters, and as to course of proceedings ; and a failure of jurisdiction in any of these respects is fatal to any defence which rests on the assumption that the party attempted to be charged was acting in a judicial capacity.

In the same case it is settled that it is incident to courts of every kind to punish contempts of their authority; and that no other tribunal is authorized, when proceedings of this class are brought incidentally before them, to reexamine their proceedings. How this might be in a proceeding designed expressly to' reexamine the proceedings, it is not necessary to inquire.

The present is a case not perhaps strictly of contempt at common law, but of an analogous kind under the provisions of a statute, and which would be governed in most respects by the same or similar rules.

The judgment of the court in a case of contempt, and the judgment of a magistrate imposing a sentence under a statute, are equally judgments, which, so long as they remain in force, and not reversed or set aside, are conclusive upon the points there decided, and no other court will suffer the question relative to the propriety of such judgment to be raised before them in any merely collateral proceeding. Demeritt v. Lyford, 7 Foster 547, and cases there cited.

But the question whether any such judgment has been rendered, is always open, in every other tribunal where it becomes material, to the rights of parties to raise it. And as want of jurisdiction of the subject matter renders every judgment pronounced by an unauthorized tribunal a mere nullity, the result is the same as if no judgment was in fact rendered, if it proves to have been rendered by an incompetent tribunal; though there are some defects usually spoken of as defects of jurisdiction, which relate to notices to the party affected, which may be waived by acts of parties, and are afterwards disregarded ; but none such come in question here. State v. Richmond, 6 Foster 232.

From these principles it follows, that in this action of trespass for an arrest and imprisonment under a supposed judicial decision, there is but a single question before us. That question is, whether the defendant had jurisdiction to render the judgment-under which the plaintiff was arrested. If he had such jurisdiction, he cannot be charged in this suit. And this court will not inquire whether or not the power has been wisely exercised, or whether the decision is right or wrong, in form or substance. If such enquiry can be made at all, it must be by some proceeding specially designed for that end.

So far as we are aware, it was not supposed that a justice of the peace, under the statutes in force before the Revised Statutes, had authority to issue an attachment for contempt against a witness who neglected or refused to appear before him and give his testimony in a deposition to be used before some other tribunal. No such case had come before the court. The phraseology of the statute was not calculated to lead to such exercise of power. The statute of Feb. 9, 1791, (Laws, 1815, 106; Laws, 1830, 98,) gave to justices power “ to grant summons for witnesses,” among other cases, “ in all cases pending or triable before himself, and to grant summons for witnesses to appear before him at a certain time and place, to give a deposition in • any matter, or cause, where the same may be lawfully taken;” sec. 22; and it provided that if any person, served with lawful process or summons before any justice, to testify, or give a deposition in any case where the same may be lawfully taken, and having tendered to him his fees, &c., shall neglect to attend, &c., or refuse to testify and give his deposition, if so required, having no reasonable excuse, he shall be liable to the action of the aggrieved party for all damages,” &c. “ And every justice before whom any witness is required to appear and testify, is empowered to bring any witness, having been duly and lawfully summoned, neglecting or refusing to appear and testify, by attachment; and if upon examination it shall appear that such witness had no reasonable excuse, to fine him not exceeding forty shillings and costs.”

By the Revised Statutes, chap. 188, secs. 5, 6, 7 & 8, these provisions are revised and reenacted, without material change, except in the last. By section 8 the last provision is reenacted with a single modification, which seems material. It provides that “ every justice before whom any witness has been summoned to appear and testify, or give a deposition, may bring any witness, refusing or neglecting to appear and testify, or give a deposition, by attachment before him, and if on examination he has no reasonable excuse, may punish him by a fine not exceeding ten dollars, and may order him to pay costs.”

In the first of these statutes there seems a marked distinction between the clauses subjecting witnesses to a liability for damages, and that providing for an attachment for contempt. The first applies to cases of summons to give a deposition. The last has in terms no reference to that case. But by the Revised Statutes the provision corresponding to the last of the old statute applies, in terms, to the case of a summons to give a deposition.

It is contended that by the old statute it is clear that a justice has no power to fine a witness for neglecting to give a deposition, and the Revised Statutes are but a revision of this, and that no change was intended in the law beyond a mere abbreviation. In the general principle relied on in this suggestion we entirely concur. “ Where the law antecedently to the revision was settled, either by clear expressions in the statutes or adjudications on them, the mere change of phraseology shall not be deemed a change of the law, unless such phraseology evidently purports an intention of the legislature to work a change.” Taylor v. Delaney, 2 Caines’ Ca. in Error 151; 4 Johns. 359, Yates’ Case; Crowell v. Clough, 3 Foster 209; Sheffield v. Lovering, 12 Mass. 492; Sloan v. Bryant, 8 Foster 67; in re Brown, 21 Wend. 316; Thueat v. Hart, 2 Hill 380; Croswell v. Crane, 7 Barb. 191; Dominick v. Michael, 4 Sandf. S. C. 374; Ennis v. Crump, 6 Texas 34; in re Murphy, 3 Zab. 180.

But the change of phraseology in the 8th section does not seem to fall within this rule. It is not an abbreviation, nor modification, but is the insertion of a distinct clause twice, (one by the commissioners and the other by the legislature; Comr’s Rept.;) which had no place in this provision of the old statute, though the phrase occurs repeatedly in the other provisions. It must be rejected wholly, or it must be construed to include the new case of refusal to give a deposition, among those where a justice may impose a fine. Buck v. Spofford, 31 Me., 1 Red. 34; Paige v. Ellis, 1 Pick. 43; unless, indeed, we should infer that the legislature regarded this as a case already provided for in the old statute, and designed merely to remove any doubt upon the matter. We think the true construction of the statute is, that the powers of a justice were designed to be extended to this new case, and that under it a justice may bring before him and fine any person, who, upon being duly summoned, shall, without reasonable excuse, neglect or refuse to appear before him and give a deposition.

The power being given to impose a fine in certain cases, no general presumption can be allowed that the justice has kept within his jurisdiction, as might perhaps be done in the case of the superior courts of general jurisdiction; because his powers are merely statutory, and confined to the precise cases specified in the law. We have, therefore, to examine the grounds of defence stated, to ascertain if the power is alleged to be exercised in this case under the circumstances and within the limits where it may be lawfully done.

By the statute it is required that the witness shall have been duly summoned before the justice, to give a deposition in a matter or cause where the same may be lawfully taken ; and shall have neglected or refused to appear and testify, shall have been brought before him by attachment, shall have been examined, and has no reasonable excuse, and then he may be fined and ordered to pay costs.

Each of these matters is alleged distinctly and sufficiently, as we think, in the brief statement, and no question is raised except as to two of them. It is alleged that the deposition was to be taken to be used in the supreme court of Maine, and it is objected that there is no statute provision for the {¡taking of depositions in such cases, and consequently that no deposition can be lawfully taken before a justice here in any such case. But it by no means follows that, because there is no statute provision on the subject, depositions cannot lawfully be taken here in such cases. The statute to which we have referred does not affect to state the cases where depositions may lawfully be taken, but leaves that matter to be determined by other statutes, or by the common law. There is no suggestion that there is any common law principle, or statute provision, which forbids such deposition to be taken; and it might perhaps be sufficient to rely on the general principle of our law, that it is lawful to do whatever is not, either expressly or by some genéral principle, forbidden to be done. But it is generally understood that from time immemorial depositions have been so taken here, to be used in other States and countries. Commissioners to take such evidence are appointed here by other States, and by this State resident in other States, and we have yet to learn that it has ever been held illegal any where to take such depositions. Our laws, (Rev. Stat., chap. 188, sec. 14,) authorize judges and justices in any other State or country, to take depositions to be used here. By the law of nations it is said the courts of justice of different countries are bound to be mutually aiding and assisting to each other for the furtherance of justice. Hence, when the testimony of witnesses who reside abroad is necessary in a cause, the court or tribunal where the action is pending may send to the court or tribunal within whose jurisdiction the witnesses reside, to take their testimony. Hall’s Practice 37 ; 1 Greenl. Ev. 367.

These considerations demonstrate the lawfulness of taking such depositions, which is all that is required as to this point to give a justice jurisdiction.

It is objected, that the witness was not duly summoned; that is, he was not summoned to appear and give his deposition, but that he was summoned to appear and testify, and it is alleged that such a summons was not a proper foundation for an attachment for not attending to give a deposition. It seems, however, to be as suitable a form of summons in the one case as in the other, since the party is required to testify in the one case as well as in the other, and we understand this to be the usual form in both cases. It has the additional merit of being the form prescribed by the statute.

It is said the brief statement does not show a sufficient notice, nor an appearance sufficient to justify an adjournment, nor that the plaintiff was summoned to attend at the time and place notified for taking the depositions, nor that the plaintiff refused to give a deposition, with or without reasonable cause, nor that the deposition, if taken, could have been used, nor that the plaintiff was guilty of any contempt, nor that the deposition was proposed to be taken in accordance .with the laws of the State.

Now there is one answer to all these suggestions, namely, that the defendant, if he had jurisdiction to act in the case, and to try and determine these questions, is not answerable in a civil action for any thing done by him in the discharge of his official duties. And that, neither in this action, nor in any other, will the court treat his judgment as a nullity, nor reexamine the merits of the question he has decided, so long as he has not overstepped his jurisdiction. Motion denied.

* Peeley, C. J., and Bowler, J., having been of counsel, did not sit.