WOODALL et al.
BUCKINGHAM et al.
Judgment for plaintiffs.
[45 Del. 361] This is an action by a tenant against a magistrate and his constable for damages as the result of what is known as a tenant holding over action. The facts are these. The Plaintiff rented a farm house owned by a Mrs. Wilhelm. Being behind in his rent she instituted an action to regain possession of her premises under Chapter 123 of the Revised Code of Delaware, 1935.
The original writ of summons was issued by the Defendant, Buckingham, and served on May 5, 1948. It was made returnable on May 7, two days, instead of 5 days later, as required by Section 4 of Chapter 123, Revised Code of 1935. From this point on the evidence is in serious conflict. Plaintiff testified that on Saturday, May 8, the Defendant Zebley, a constable, drove to his home, informed him that he had a forthwith summons for his appearance before Buckingham and that he drove in Zebley's car to Buckingham's office to discuss the matter. Zebley denies this and states that he saw Plaintiff in Middletown that morning, told him the magistrate wanted to talk with him and that Plaintiff went to see him of his own accord. In any event, voluntarily or involuntarily, Plaintiff did talk with Buckingham. The subject matter of the conversation is again in sharp dispute. Plaintiff testified that he promised to try and vacate the premises by the 21st but made no firm commitment in this respect. Buckingham stated that Plaintiff absolutely agreed to quit the house by May 31st. On the strength of this conversation, Buckingham entered judgment against Plaintiff. On June 2d, Plaintiff not having vacated, a writ of eviction was issued. As to the manner of eviction the evidence is contradictory. Mrs. Woodall, Plaintiff's wife, testified that her husband went to work early, that she drove her children to school and then went to market and returned about 10 A.M.;
that there was a truck at her door, the door window next to the lock was smashed and Zebley together with others, was loading their furniture. Thereafter, she stated that she got her husband from his work and drove with him to Middletown [45 Del. 362] where they saw the last of their furniture being haphazardly unloaded into a garage. Both Plaintiff and his wife testified that the furniture was badly damaged by careless handling. Zebley denies he broke a window to gain entrance to Plaintiff's home and states that the damage to their furniture, if any, was due to negligent handling by Plaintiffs when they loaded it into two trucks and moved it to their new home.
Robert C. Barab, of Wilmington, for the plaintiff.
August F. Walz, of Wilmington, of Hastings, Stockly, Walz & Wise, Wilmington, for the defendants.
The clear weight of authority is to the effect that a magistrate is not liable for errors or omissions insofar as concerns his judicial acts. In this connection Am.Jur. Vol. 31, Justices of the Peace, Sec. 21, says: 'Sec. 21--Within Jurisdiction.--It is a principle lying at the foundation of all well-ordered jurisprudence that every judge, whether of higher or lower degree, exercising the jurisdiction vested in him by law and deciding upon the rights of others should act upon his own free unbiased convictions, uninfluenced by any apprehension of consequences. He is not bound, at the peril of an action for damages or of personal controversy, to decide right, in matter of either law or fact, but to decide according to his own convictions of right. Such, of necessity, is the nature of the trust assumed by all on whom judicial power, in greater or lesser measure, is conferred. This trust is fulfilled when he honestly decides according to the conclusions of his own mind in a given case, although another might have come to a different conclusion. Accordingly, where a justice of the peace acts fully within his jurisdiction, that is, when he has jurisdiction of the subject matter and has acquired jurisdiction of the person in the particular case, he is not liable for acts done in the case.'
The rule is different, however, where the magistrate acts without jurisdiction. On this subject, Am.Jur. Vol. 31, Justices of the Peace, Section 22, goes on to say: 'Sec. 22.--Without Jurisdiction.--The generally accepted rule is that a justice of [45 Del. 363] the peace is civilly liable when he acts without jurisdiction of the person, without a general jurisdiction of the subject matter, or without compliance with jurisdictional prerequisites, irrespective of motivle or corruption * * *.'
In this case the Defendant magistrate made his original summons returnable in two, instead of the five days, which the Act clearly demands. The original writ was, thus, void. 6 A.L.R. 851, Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 753, and cases therein cited. The Defendant agrees with these more or less axiomatic propositions just stated but contends that the failure of original jurisdiction over the person under the invalid writ of summons was cured by Woodall's subsequent appearance and confession of judgment. It is fundamental that where a magistrate has jurisdiction of the subject matter, as in this case, a defect in jurisdiction over the person of the Defendant may thereafter be cured by his appearance. Workman v. Hearn, 1 W. W. Harr. 138, 111 A. 744.
Held after an examination of all the evidence that Plaintiff, Woodall, did not voluntarily enter his appearance in the case and that the damages to his furniture were ...