Decided March 31, 1943.
Costs — Right to demand itemized statement waived, when — Section 3039, General Code — Judicial magistrate exempt from civil liability, when — Magistrate may apprehend defendant who stopped payment on check for costs, when.
1. Section 3039, General Code, grants to one liable for the payment of court costs a right to demand and receive an itemized statement thereof before payment, but this right may be waived, and payment of costs before such statement is furnished constitutes a waiver.
2. A judicial magistrate who has jurisdiction of a person charged with and the subject matter relating to a criminal offense, is exempt from civil liability for false arrest in dealing with such offense so long as he acts within such jurisdiction and in his judicial capacity. ( Stahl v. Currey, 135 Ohio St. 253, approved and followed.)
3. If a defendant, charged with and found guilty of an offense by a judicial magistrate who has jurisdiction of the person and subject matter in connection with such offense, violates the terms of his discharge by stopping the payment of his check given in settlement of costs assessed against him, such magistrate may, with or without an additional warrant, cause such defendant to be apprehended for the further disposition of the charge against him.
APPEAL from the Court of Appeals of Summit county.
This cause originated in the Common Pleas Court of Summit county as an action to recover damages for an alleged false arrest suffered by the plaintiff, George E. Voll, appellee herein. The defendant Daniel H. Steele, appellant herein, was at the time of such arrest the duly elected and qualified mayor of the village of Northfield, and the defendant Glenn Hotchkiss was the marshal of the village. The defendant Charles Andexler, Jr., was dismissed, on motion, while the defendant William Gallaugher was exonerated from liability to the plaintiff by the verdict of the jury. This case is therefore before this court on the appeals of Daniel H. Steele and Glenn Hotchkiss.
The petition alleged in substance that on or about November 9, 1939, the defendant Daniel H. Steele, "without right and without the jurisdiction, power or authority, and with the intent and purpose of then and there causing the arrest of the plaintiff, did unlawfully and without warrant of law, or any lawful complaint made before or to him, issue a warrant thereon for the arrest of said plaintiff on a purported charge of contempt"; that the defendant marshal "did unlawfully arrest and detain this plaintiff at his home * * * in the city of Akron, Ohio, at an unreasonable hour of the night, to wit, at about 10:30 p. m."
Separate answers were filed by each defendant which denied generally the averments of the petition, and contained also certain other defenses. These defenses were put in issue by reply, and the case came on for trial.
The evidence produced by the plaintiff shows that on or about October 21, 1939, the plaintiff, George E. Voll, was arrested by a police officer of the village of Northfield on a charge of unlawfully operating a motor vehicle upon a public highway within the village at a speed greater than was reasonable and proper, in violation of the ordinance of the village; that Voll, in lieu of a bond, gave his personal check in the sum of $10 to secure his appearance in court to answer the charge preferred against him. The hearing was set for October 26, 1939. A continuance was granted at Voll's request and on November 2, 1939, Voll appeared before Daniel H. Steele, mayor of the village of Northfield, for trial, and either pleaded guilty to or was convicted of the offense as charged. The records of the mayor introduced by the plaintiff show that Voll pleaded guilty to the offense as charged, but this is disputed by the plaintiff.
It is undisputed, however, that Voll was fined $5 and assessed costs in the sum of $6.10, making a total of $11.10, which sum he paid the same evening by application of his check theretofore given and the additional payment of $1.10 in cash.
Voll, as he paid the balance of costs, protested the costs and demanded an itemized cost bill from the clerk and from the mayor, but it was not given that evening because the mayor was busy and did not have a fee bill at hand from which to make it up. However, the mayor promised to mail Voll an itemized statement later. Thereupon, under the testimony of Voll himself, he was given a receipt evidencing full payment of the fine and costs.
On the second day after his conviction and after he had made settlement for his fine and costs, Voll, without consulting the mayor, or surrendering himself into the custody of the court, or returning his receipt for fine and costs, stopped payment on his check. Afterwards, on the same day, he wrote a letter to the mayor enclosing a new check for $3.90, leaving the costs unpaid, stating that he would pay them when he received a statement of the costs.
The mayor received this letter on the fifth or sixth of November. In the meantime, Voll's check for $10, which had been deposited by the mayor, was charged back against the bank account of the village of Northfield, and the mayor was so notified by the bank.
The defendant mayor, Daniel H. Steele, thereupon consulted the solicitor of the village, Earle J. Frase, who advised him that this stoppage of the check constituted a contempt, and said to the mayor, "go out and get him." Thereupon, the defendant mayor issued a warrant which recited that "on or about the 2 day of Nov. 1939, at the village of Northfield in said county and state, one man by name of George E. Voll was tried and fined on his plea of guilty for violating Sec. 2 of ord 658 and said George E. Voll is now in contempt of court because of stoppage of check in said case."
No separate affidavit had been filed as the basis for this warrant, but in preparing the warrant a purported copy of an affidavit was included therein which was actually signed by the deputy marshal and sworn to before the mayor, so that the warrant itself contained an original affidavit.
This warrant was served on the plaintiff at his home in Akron, on November 9, 1939, and the plaintiff was placed under arrest, but immediately released upon deposit with the officer of his personal check for $25 in lieu of a bond for his appearance in court.
The plaintiff appeared before the mayor again on November 27, 1939, to answer for the contempt. He paid the costs in the original action in the sum of $6.10, and was given an itemized statement of these costs. The contempt charge was dismissed, although the record shows that no separate case number was assigned to the contempt proceedings. After having secured his release by payment of the costs, the plaintiff filed this action.
The case was submitted to a jury, and the jury found for the plaintiff, George E. Voll, and against the defendants Daniel H. Steele and Glenn Hotchkiss in the sum of $4,000.
A motion for a new trial was overruled, the trial court holding that the damages given plaintiff were not excessive. The case was thereupon appealed to the Court of Appeals and that court affirmed the judgment of the Common Pleas Court, one judge dissenting. The case is before this court for review on the allowance of a motion to certify the record of the Court of Appeals.
Messrs. Brouse, McDowell, May Bierce and Mr. John D. Wortman, for appellee.
Mr. Carl M. Myers and Messrs. Romweber Romweber, for appellants.
This is an action for damages for the alleged false arrest of the plaintiff. The defendants claim that the judgment against them resulted from certain errors which occurred during the trial of the case, some of which excited passion and prejudice upon the part of the jury. Among the errors complained of are: The examination of witnesses on subject matter which was not germane to the issues in the case, especially as to the amount of revenue which the village of Northfield received from fines in traffic cases during the preceding year; the improper and prejudicial cross-examination of the defendants' witnesses by the trial judge; the allowance of excessive damages, showing passion and prejudice upon the part of the jury; errors in the court's charge to the jury; and refusal of the court to apply the doctrine of the case of Stahl v. Currey, 135 Ohio St. 253, 20 N.E.2d 529.
The fact that passion and prejudice influenced the jury in this case may be inferred from the size of the verdict which was many times the amount of the actual compensatory damages shown by the evidence. This verdict was sustained by the Common Pleas Court and the Court of Appeals, one judge dissenting, on the theory that the plaintiff may recover not only compensatory damages but punitive damages. However, an inspection of the record discloses that the verdict in this case may be accounted for by some of the errors complained of which would in the opinion of all the members of this court, require a reversal of the judgment.
But, the court is of opinion that its judgment must be predicated upon a more fundamental basis.
It is not contended that the defendant Steele, as mayor of the village of Northfield, did not have jurisdiction over the plaintiff, Voll, in his arrest for the violation of the speed ordinance of the village. There is no complaint as to the regularity of the affidavit and the charge made against Voll as a defendant in that action. The mayor claims and the record shows that Voll entered a plea of guilty to the charge. Voll claims that there was no plea of guilty, but he did not demand a trial and he paid his fine and costs by paying cash $1.10 in addition to the deposit check of $10 which Voll admits was to be used in payment of the balance of the fine and costs. Notwithstanding he made a demand for an itemized statement of the costs, he later paid his fine and costs, took a receipt therefor in full and secured his release on the theory that he had paid both fine and costs. There can be no question that in all these proceedings the defendant Steele had jurisdiction over Voll and was acting in a judicial capacity.
Later on, Voll conceived the idea that he would further contest the matter of costs pending his receipt of an itemized statement of the same. It will be noted that this was possible only because he had given his check for $10 instead of $10 in cash as a part of the payment of his fine and costs. Pursuant to his then attitude, he stopped payment on his $10 check and sent the defendant mayor another check for $3.90 which, with the $1.10 already paid, he attempted to pay his fine but leave the costs unpaid. He claims he was justified in this procedure by reason of the provisions of Section 3039, General Code, which are as follows:
"In all cases when demanded by a person liable to pay any fees or costs to an officer, such officer, without charge shall make, sign and deliver to such person, an itemized bill thereof. After such demand, no person shall be compelled to pay such fees or costs until an itemized bill is so made and delivered, with a receipt for the fees and costs paid." (Italics ours.)
It is apparent from the statute, and this court holds, that it grants the party against whom costs are awarded a right or privilege which may be waived. From the circumstances as shown by the record and as above recited, Voll had waived his right under this statute, had paid his fine and costs and had thereby secured his release from custody. It was too late to assert his right to demand an itemized statement of the costs and too late to repudiate their payment.
In no event did he have any right to stop payment on the $10 check. If it had been surrendered in payment of his fine and costs as it was, he could not reclaim it; and even if it be claimed that it was not used as payment, then it was still his deposit to secure his appearance and custody in court until his case was disposed of.
Voll, the plaintiff in this case, claims that the defendant mayor had no jurisdiction to charge him with and to rearrest him for contempt of court as the result of the stoppage of the payment of the check given in payment of fine and costs, and this is the gist of plaintiff's claim in the present action.
However, having repudiated the arrangement by which he was released from custody, the mayor, a defendant in this case, had jurisdiction, forthwith and without any further affidavit or other proceedings, to place Voll in custody until his fine and costs were paid. This is what the defendant mayor did, all of which was within his jurisdiction in the case involving the violation of a speed ordinance.
The trial judge recognized this to be the law, when, in the course of his charge to the jury, he said:
"I say to you as a matter of law that if upon the finding here, if there should be a finding by you, that there was no seasonable demand made for the itemized list of the costs, then the person of this plaintiff was subject to apprehension at any and all times, and at any place, insofar as this case is concerned while he was at liberty without those costs having been paid, or offered to be paid in a method satisfactory to the one to whom they were to be paid. * * *"
The trial judge, however, failed to charge, as he could and should have charged, that since the plaintiff Voll had waived the demand for a statement of costs by paying his fine and costs and thereby securing his discharge, he was still subject to arrest if he withdrew from the control of the court, without its consent, the check or money with which such fine and costs had been paid. One who has escaped from lawful custody may be rearrested without a second affidavit or warrant. And where a magistrate discovers that he had been imposed upon in allowing insufficient bail, he may have the accused rearrested and hold him for sufficient security. 3 Ohio Jurisprudence, 133, Section 7.
The mayor's conception of the proper procedure under the circumstances was different. He issued another warrant for Voll's arrest which resulted in the giving of another check by the latter for his appearance on the so-called contempt charge. When he again appeared before the mayor the matter was closed by Voll's payment of the fine and costs in the identical amount as before, whereupon he was released and discharged.
As this court views it, the mayor had jurisdiction under the original affidavit to do just what he did do in that case, and his so-called contempt warrant merely constituted an unnecessary procedure for the doing of what he had otherwise a perfect right to do by virtue of his judicial office.
As to the liability of a judge or magistrate in a suit for damages, it is said in 23 Ohio Jurisprudence, 461, Section 110:
"The principle is well settled, both by authority and by reason, that no civil action can be maintained against a judicial officer for the recovery of damages by one claiming to have been injured by his judicial action within his jurisdiction. From the very nature of the case the officer is called upon, by law, to exercise his judgment in all matters before him, and the law holds his duty to the individual to have been performed when he has exercised it, however erroneous or disastrous in its consequences it may appear to be, either to the party or to others. Such protection is essential to the honest and independent administration of justice, and is based on sound public policy." See, also, Truesdell v. Combs, 33 Ohio St. 186; Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451, L.R.A. 1918F, 1132.
Originally, magistrates or judges of lower grade were held to strict accountability for their judicial acts, but in later years this doctrine has been relaxed. 30 American Jurisprudence, 757, Section 44.
On this subject, 23 Ohio Jurisprudence, 465, Section 112, says:
"Modern opinion * * * seems to be tending in favor of making no distinction between judges of superior and inferior courts as regards their liability. Some courts and authorities have contended that the same immunity granted the courts of general jurisdiction for mistakes on passing on questions of their jurisdiction should be extended to magistrates and courts of limited jurisdiction. Still further it has been suggested that as the latter class of officers possess less knowledge of the law, and for that reason are more liable to make mistakes than the judges who preside in courts of general jurisdiction, they should have a greater immunity, where they act in good faith and free from malice." See Truman v. Walton, 59 Ohio St. 517, 53 N.E. 57.
Voll was required to do only what the law required him to do on his arrest under the original affidavit. Besides, the defendant in those proceedings suffered no damage. His additional inconvenience was the result of his own act.
In many respects this case and the issues involved are similar to the case of Stahl v. Currey, 135 Ohio St. 253, 20 N.E.2d 529, wherein this court held that if a judicial officer has jurisdiction of the person and of the subject matter relating to a criminal offense, he is exempt from civil liability for false imprisonment so long as he acts within such jurisdiction and in a judicial capacity; and even where a judge or other officer acting in a judicial capacity, having jurisdiction of the person and the subject matter, goes beyond or exceeds his authority, he is not liable, his act in such a case being only reversible error.
In the judgment of this court, the defendant Steele in all that he did was within the protection of his judicial position. The defendant Hotchkiss, acting in his official capacity and under the direction of the defendant mayor, had authority to take Voll into custody independently of the so-called contempt warrant, and like the defendant mayor, is protected against the charge of false arrest.
Under the circumstances the trial court should have sustained defendants' motion for a directed verdict.
The judgment of the Court of Appeals is reversed and final judgment is entered for the appellants.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.