Dusy v. Helm

Thornton, J.: This is an action for false imprisonment. The cause was tried by the Court and judgment was rendered for defendant. Plaintiff appealed.

The points to which our attention is called arise upon a demurrer to the answer; and they relate to an affidavit of the defendant to procure an order of arrest in an action instituted to recover certain personal property by defendant against plaintiff herein, and the order of arrest made thereon by the Judge of the Court in which the action just above 'mentioned was brought.

If the Judge to whom the application was made had jurisdiction to pass upon the sufficiency of the evidence disclosed by the affidavit to procure the order of arrest, the party applying for it can not be held responsible unless there was an entire lack of evidence of some essential fact which the law requires to be shown. The Judge having determined in the exercise of the jurisdiction committed to him by the law, that the affidavit by its statement of facts was sufficient to entitle the party applying to the order, to hold that such [190]party is liable in damages for the erroneous judgment of the Judge, would impose on him a responsibility not warranted by law. That the Judge had jurisdiction to determine judicially upon the evidence furnished by the affidavit, is clear from the provisions of section 481 of the Code of Civil Procedure. The decision of the Judge “ may involve error to be corrected, and still be unassailable for defect of jurisdiction.” (Johnson v. Maxon, 23 Mich. 136, per Grover, J.) The rule applicable to such a case is thus stated by Bronson, C. J., in Miller v. Brinkerhoff, 4 Denio, 120: “ When the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the process will be valid, until it is set aside by a direct proceeding for that purpose. In one case” (the reference here is to a case where there is a total defect of evidence as to any essential fact) “ the Court acts without authority; in the other, it only errs in judgment upon a question properly before it for adjudication. In one case there is a defect of jurisdiction; in the other, there is only an error of judgment. Want of jurisdiction makes the act void; but a mistake concerning the just weight and importance of evidence, only makes the act erroneous, and it will stand good until reversed.” This rule is abundantly sustained by decided cases. (See Gillett v. Thiebold, 9 Kans. 427; Skinnion v. Kelly, 18 N. Y. 355; Staples v. Fairchild, 3 Coms. 41; Kissock v. Grant, 34 Barb. 144; Outlaw v. Davis, 27 Ill. 466; Johnson v. Maxon, 23 Mich. 136.)