Brown v. Crowl — 5 Wend. 298

Majority

p. 298

Brown and others vs. Crowl.

Headnote

False imprisonment will not lie against a plaintiff who insists in a justice’s court that he is entitled to a general judgment against a defendant, notwithstanding an insolvent discharge exempting the body of the defendant from, execution, obtains such judgment and procures an execution to be issued on which the defendant is arrested.

Although the judgment be erroneous, the point having been discussed an£ judicially decided, the plaintiff is protected by the judgment.

Where resort is had to management or artifice to deprive a defendant of the-benefit of exemption from execution against his body, it seems the actioo will lie.

Error from the Madison common pleas. Brown and his co-plaintiffs, as trustees of a school district, had obtained a judgment against Growl for $8 r\\ for a school tax. After the judgment, Growl obtained a discharge as an insolvent debtor, exempting his body from imprisonment, and subsequent to obtaining such discharge, he was called on by a constable who held an execution against him on the judgment to pay it. He told the constable he would pay it as soon as he got able. The constable informed the plaintiffs of the new promise, and they directed him to obtain a summons and serve it on Growl. The summons was obtained and served; Growl appeared and pleaded his insolvent discharge. Brown appeared in behalf of himself and his co-plaintiffs, and insisted that they were entitled to a general judgment under the new promise, so that they might have an execution against the body of the defendant. After the evidence was closed, Brown told the justice that if it was illegal, he did not want a judgment or execution against the body of the defendant. The justice entered a general judgment and issued execution thereon, by virtue of which the defendant was ‘arrested. For this arrest an action of false imprisonment was brought by Crowd against Brown and his co-' plaintiffs, (Lyon and Howard.) After these facts appeared on the trial in the common pleas, the counsel for the defendants insisted, 1. That the justice had jurisdiction to render a general judgment, and that if such judgment was

p. 299

erroneous, it was not void, and was therefore a protection to ihe defendants; 2. That Brown not having requested the issuing of the execution, otherwise than in what was said by him on the trial of the cause, the defendants were not liable for the issuing thereof; and 3, That at all events, if the action did lie, Brown alone was liable, and not his co-plaintiffs. On the first and third points, the court charged in favor of Ihe plaintiff, and on the second point submitted the question 4o the jury to determine whether the execution was or was mot issued with the assent of the plaintiffs therein. The defendants excepted, and the jury found a verdict for the plaintiff, on which judgment was entered.

P. Gridley, for plaintiffs in error.

J. A. Spencer, for defendant in error.

By the Court,

It appeared from the evidence, that all the defendants below had directed a new suit be fore the justice, expressly for the purpose of imprisoning tire plaintiff. They had a judgment against him an execution against his property when he was discharged. A new judgment could not be desired for any other purpose íhan to imprison him, and the evidence is that the new suit was brought for that purpose alone. It is clear, therefore, that if an action lies at all, it lies against all. In this ¡respect this case is not like Percival v. Jones, 2 Johns. Cas. 51 , and Taylor v. Trask, 7 Cowen, 249. In those cases the justice issued such execution as he thought proper, without any special direction from the party; but here, the very object of the suit was to obtain execution against the person, and that point was discussed at the trial.

The only question then is, whether the second judgment was a protection to the parties 1 It was valid until reversed, although erroneous. The justice had jurisdiction of the cause and of the person, and in admitting or excluding any defence which affected the plaintiffs’ remedies, he acted judicially. The defendant before the justice had a perfect remedy either by appeal or certiorari. In this respect this case differs essentially from those referred to. Here the question was agi

p. 300

toted in court and judicially decided; in those cases, the right to an execution was not a question judicially acted on by the justice. In issuing executions, where the defendant was exempted from imprisonment, the justice acted ministerially; the grounds of that exemption were to be shewn to the justice after the judgment was entered, and formed no part of the res gestee in the suit. In such cases the defendant had no other remedy; no appeal or certiorari would He because the justice entered a general judgment which could have been in no other form. The case of Delvin v. Churra, referred to by the defendant’s counsel, was decided in August, 1823, on the same principle. The act of 1819, sess. 42, p. 118, had provided that no householder, not being a freeholder, should be imprisoned fora debt under $>10, provided he shewed at the time of rendering judgment that he was within the provisions of the act. When judgment was recovered against Delvin before the justice, he attempted by his counsel to avail himself of this provision, and though he did not produce the proof required by the statute, it appeared that he was prevented from doing so by some management on behalf of the plaintiff. The justice thought the claim to exemption was not in season, though made, before the execution was filled up. This is my recollection of that case, which may be imperfect, having been decided several years since. At all events, it must have been decided upon the ground that the judgment was regular and the execution irregular, upon the same principle which governed the decision in Percival v. Jones ; and the action was held to lie against the plaintiff before the justice, because he was active in taking out the execution and imprisoning the defendant, with knowledge of the irregularity. This case seems to me to be entirely different, and to depend upon a different principle; here the liability of the defendant’s imprisonment was the point be» fore the justice; it was judicially decided by him, though erroneously ; but the error should have been corrected, either by appeal or certiorari, according to the circumstances of the case.

p. 301

I am of opinion, therefore, that the judgement, while unreversed, justified the execution, and that no action lies for false imprisonment.

Judgment reversed.