Scott v. . Fishblate

Furches, J.: This is an action of false imprisonment. At the time of the act complained of, the defendant was mayor of the city of'Wilmington and plaintiff was under arrest upon a warrant issued by defendant upon a charge of “burying nightrsoil” within the limits of the city. The *274 gravamen — the act complained of — is an order for contempt of court, made by defendant, under wbicb plaintiff was imprisoned in the common jail of New Hanover county for a number of days. Sufficient appears in the history of this case, as contained in the record, to satisfy us that defendant acted badly on the occasion of making this order; and that he was lacking in that respect for the position he occupied, that is usually found in those occupying such positions, and as should have governed his conduct on that occasion. And it seems to us that the testimony of DeRosset and others strongly tended to establish plaintiff’s contention that defendant’s court was not in session when this order was made; that it was made hastily and in bad temper; that defendant resumed the chair and took control of plaintiff’s case; that he had just before made an order to remove, for the purpose of carrying into effect an order he had no right to make, when he did make it. Aud that the claim of defendant, as a reason why he told Clowes (who seems to occupy the conve dent positions of Justice of the Peace, Chief of the City Police and Glerh of the Mayor’s court) to fine plaintiff for contempt of court, was his order given to Clowes, as his clerk, was an after-thought. Rut this was defendant’s testimony, and he introduced other testimony tending to sustain 'his contention that his court was in session at the time the order was made. But his case presents for our consideration a very grave proposition of law, in which the suffering and damage of plaintiff, and the bad conduct of defendant must be subordinated for the present to a discussion of the individual rights of the citizen and the independence of the judiciary. All courts exercising judicial powers have the inherent right to punish for contempt. This power is necessary to their existence, and where it is for conduct in the presence *275 of the court it is final and cannot be reviewed by this or any other court. Bradley v. Fisher, 13 Wallace, 335; Pratt v. Gardner, 2 Cush. (Mass.) 63; Cook v. Bangs, 31 Fed. Rep., 640 ; State v. Mott, 4 Jones, 449; In re Deaton, 105 N. C., 59. As we have said, this power exists in all courts having and exercising judicial functions — mayor’s courts and justice’s courts as well as higher courts having and exercising greater jurisdiction. Cook v. Bangs, and In re Beaton, supra. The defendant then had the right— the power — to make the order of contempt if he was sitting and his court was open for the. transaction of business when he made the order. And if it was made then, it was in the exercise of a judicial power and was a judicial act— a judgment of the court; and a civil action cannot be maintained by the plaintiff against the defendant for damages, though the order complained of was erroneous, and made through malice. Pratt v. Gardner, Cook v. Bangs and Bradley v. Fisher, supra. This seems to be a wrong without a remedy, which is said to be contrary to the spirit of our institutions. “That where there is a wrong there is a remedy”. But if this is so, it is neccessarilv so ; and it must be taken that the plaintiff has agreed that it shall be so. But for the government, of which he is a part, there would be no law, nor would there be any courts to right public wrongs, none to which the citizen ( the plaintiff) could appeal to have his private rights declared and enforced. But for the law and the courts to declare and enforce the law, the plaintiff would be without remedy for any grievance, and the law of course might prevail. To have this legal protection, it is necessary to have courts— judges, justices of the peace, including the courts of mayors of towns and cities. And it is the experience and wisdom of our country that these courts cannot exist, or at least *276 cannot discharge their judicial functions, unless they are made free from pecuniary liability for their judgments while so acting. This does not protect them from impeachment nor from indictment for misconduct, fraud, or corruption in office, because these are public wrongs committed against the government whose servants they are. This brings us to the real issue in this case, and that is, whether the defendant’s court was open for the transaction of business when he made the order imprisoning the plaintiff for 30 days for laughing in his court. And- the jury has settled this question, if there are no errors in the rulings and instructions of the court. There are no exceptions to evidence, and there is no exception to the charge of the court, upon the question as to whether the defendant’s court was in session or not, when the order committing plaintiff for contempt was made. It is expressely stated that there was no exception to this part of the charge. Nor do we find any exception to the charge of the court, “except that the court did not give the prayers ashed by plaintiff.” "We have examined these prayers with care, and can see no error in the refusal of the court to give them to the jury. The first is principally as to whether the “burying night-soil” was an offence under the ordinances of the city of Wilmington or not, and whether the defendant would not lie liable for issuing the original warrant of arrest. If this had been the gravamen declared on in the complaint, it would have presented a very interesting question. Cook v. Bangs, supra. Rut it is not, and we do not feel called upon to discuss this question. The gravamen, as we have before stated, is the order for contempt. The only part of this prayer applicable to the case in hand is the closing paragraph, and this was given in substance, accompanied with the statement that there was no exception to this part of the charge. The *277 other prayers, if asked, and we are treating them as if asked in writing, are subject to the same reasons given for not giving the first, and we find no error in the court’s refusing them. There is another exception as to the juror, Solomon Bear. And we can very well see from the conflicting evidence as to whether defendant’s court was in session or not, and the surroundings, why the plaintiff should not want Bear on the jury. But we are unable to see any legal error in the court made in calling him into the jury box. . It seems to be one of the many incidents which takes place in the progress of a trial, by which a party'is prejudiced, and for which the only relief is in the discretion of the Judge. This was asked and refused, and there can be no review of his ruling, in this court. After a careful investigation of the case we find no error entitling the plaintiff to a new trial.. The judgment of the court below is affirmed.- Affirmed.