Platnauer v. Superior Court

BURNETT, J.

A judgment was rendered by said superior court finding petitioner guilty of contempt and, upon petition to this court, said judgment was set aside upon the ground that the conduct of petitioner was not such as to justify said finding.

(Platnauer

v.

Superior Court of Sacramento County,

32 Cal. App. 463, [163 Pac. 237].) Petitioner thereupon filed in this court a memorandum of his costs incurred in the above-entitled proceeding which respondent has moved the court to strike out “upon the ground that the decision and judgment of the court in said matter did not award costs to the petitioner, and upon the further ground that costs are not recoverable by petitioner in any event in said matter and are not authorized or allowed by law. ’ ’

Petitioner claims that he is entitled to his costs by virtue of sections 1027 and 1032 of the Code of Civil Procedure. The former provides: “The prevailing party on appeal shall be entitled to his costs excepting when judgment is modified, and in that event the matter of costs is within the discretion of the appellate court,” etc. Section 1032 is: “When the

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decision of a court of inferior jurisdiction in a special proceeding is brought before a court of higher jurisdiction for a review, in any other way than by appeal, the same costs must be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. ’ ’

But this is not the ordinary action to which said sections of the code apply. It was directed against a court of record for the purpose of reviewing a judicial determination of that tribunal. In such cases the court is not liable for damages or for costs. The rule is stated in 23 Cyc. 567, as follows: “As a general rule no person is liable civilly for what he may do as a judge while acting within the limits of his jurisdiction, nor is he liable for neglect or refusal to act. The rule is especially true where the judge is one having general jurisdiction, and in such cases there is no liability even though he exceeds his authority. The overwhelming weight of authority is to the effect that where a judge has full jurisdiction of the subject matter and of the parties, whether his jurisdiction be a general or limited one, he is not liable civilly when he acts erroneously, illegally or irregularly and he is not chargeable with costs resulting from his erroneous rulings, or the cost of a proceeding to prohibit erroneous action on his part.” It has even been held that he is not liable when he acts from malicious or corrupt motives. (23- Cyc. 569.) Here, it may be said, there is no contention nor evidence that the court acted from anything but proper motives. Nor is there any doubt that it had jurisdiction of petitioner and of the subject matter. It, however, acted erroneously in finding from the facts that a contempt had been committed. It is true that its judgment was annulled on