Summary
In Evarts, a surety sought a judgment against the estate of a deceased Judge because, after hearing all the evidence and taking the case under advisement, the Judge failed to render judgment and enter it in the docket book.
Summary of this case from Matter of Brusco v. BraunOpinion
Argued March 12, 1886
Decided April 27, 1886
Ira Leo Bamberger for appellant. Jos. S. Ridgway for respondent.
It is a general rule that a person is not liable to an action at the suit of an individual, for what he does or fails to do as judge ( Yates v. Lansing, 5 Johns. 282, 291; 9 id. 395; Wickware v. Bryan, 11 Wend. 545), but where he omits a ministerial duty, or errs in its performance, it may be otherwise. Here the complaint is that the defendant, as justice, took jurisdiction of the cause of Stadtmuller v. Bartsch, and after issue joined, heard the evidence until the case was finally submitted for determination; that it then became his duty "to render judgment and enter it in his docket-book within four days thereafter." It should be observed that of these two acts, one, to render judgment, is judicial, and the other, to enter it, is ministerial. The plaintiff alleges a default in regard to the latter only, and his counsel says: "The respondent did not offer any evidence that he had not decided the case." It appears, however, by the answer and the case prepared for the appeal, under section 1339 of the Code of Civil Procedure, that neither act was performed. No judgment or decision was made, consequently there was none to enter, and the ministerial duty never attached. No case has been cited, which in any degree warrants this action, and the facts suggest nothing in its favor. The appellant was not a litigant before the magistrate. He was merely surety for the plaintiff, but now seeks a recovery for his own benefit, on an alleged wrong done to his principal, although for aught that appears, if judgment had been given, it would have gone against him. Moreover, the defendant was prevented by sickness from attending to his official duties, and if this suit succeeds, must answer for his bodily affliction by the diminution of his estate. The doctrine to which I first adverted makes this injustice impossible, and requires the affirmance of the judgment against which the appeal was taken.
All concur.
Judgment affirmed