
    John Fischer, App’lt, v. George F. Langbein et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    1. False imprisonment—Jurisdiction of court—Contempt, recommitment for—When process not void.
    Wheie a court is called upon to adjudicate upon doubtful questions of law, or determine as to infeienees to be drawn from circumstances reasonably : usceptible of different interpretations or meaning, and calling for the exercLe of the judicial function in their deteimination, its decision thereon does i-ot render void an order or process based upon it (.lthough afterwards vacated or set aside as erroneous), or subject the party procuring it to an action for damages thereby inflicted.
    3. Same—When acts of court void and afford no justification.
    But where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises; and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void, and afford no justification to the parties instituting as against parties injuriously affected thereby.
    8 Same—Attorneys resisting motion for discharge of a party committed FOR CONTEMPT.
    Where, in an action for false imprisonment, the defendants, as authorized attorneys, appeared and resisted a motion for the discharge of the plaintiff, who was under a commitment for contempt, pending an appeal to determine whether he was guilty of such contempt, and the mo ion for the discharge was overruled by the court before whom it was made, the defendants are not liable in damages for false imprisonment, nor are they responsible for the subsequent action of the sheriff or of the court in continuing it, although it is subsequently decided on appeal that the commitment was erroneous.
    4. Same—Contents of commitment.
    A commitment for contempt, which sets out the facts and proceedings in detail, and otherwise complies with the rule in respect to the contents of a commitment, will not be held void because it omits to state that the disobedience referre i to as a contempt had " defeated, imnaired, impeded or prejudiced” somj “right or remedy” of the party in the action who procured it.
    Appeal from a judgment of the supreme court, general term, first department, affirming a dismissal of the complaint in an action for false imprisonment. Defendants herein were the attorneys for a number of defendants in a certain suit in the New York common pleas in which plaintiff herein (Fischer) was plaintiff and John Raab and others were defendants, and they as such attorneys procured an order and commitment of'plaintiff for contempt in refusing to obey the order of the court requiring him to pay the fees of the referee, to whom the facts had been referred under an agreement as to such fees.
    
      Samuel Hand, for app’lt; Geo. F. & J. C. Julius Langbein, for resp’ts, in person.
    
      
       Affirming 30 Hun, 383.
    
   Ruger, C. J.

It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is hable for the damages thereby occasioned. In the case of void process the liability attaches when the wrong is committed, and no preliminary proceeding is necessary to vacate or set it aside as a condition to the maintenance of an action. Process, however, that a court has general jurisdiction to award, but which is irregular by reason of the non-performance by the party procuring it of some preliminary requisite, or the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court before an action can be maintained for damages occasioned by its enforcement. Day v. Bach, 87 N. Y., 56. In such cases the process is considered the act of the party, and not that of the court, and he is therefore made hable for the consequences of his act. Void process is such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not, in some material respect, comply in form with the legal requisites of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason of the existence or non-existence of some fact or circumstance rendering it improper in such a case. In all cases where a court has acquired jurisdiction in an action or proceeding, its order made or judgment rendered therein are valid and enforcible, and afford protection to all persons acting -under them, although they may be afterwards set aside or reversed as erroneous. Simpson v. Hornbeck, 3 Lans., 53. Errors committed by a court upon the hearing of an action or proceeding which it is authorized to hear, but not affecting any jurisdictional fact, do not invalidate its orders, or authorize a party to treat them as void, but can be taken advantage of only by appeal or motion in the original action. Day v. Bach, supra.

There is no claim made that the order and commitment under which the imprisonment complained of in this case was effected, was void, or even irregular, except for the alleged erroneous determination made by the special term upon the merits of the application. This determination consisted in holding that a contempt had been committed by the plaintiff, while, upon appeal, this court held otherwise. All of the facts constituting the alleged contempt were undisputed, and were presented to the special term for its consideration upon the hearing. After hearing the it decided that a had been and ordered the imprisonment complained of. It was conceded on that hearing that the plaintiff had disobeyed an order of the court, and the only question presented for its consideration was whether such disobedience 1 ‘ defeated, impaired, impeded or prejudiced ” a right or remedy of the defendants. Upon the appeal to this court it was held that the case did not clearly show that any right or remedy of the defendants had been defeated, impaired, impeded or prejudiced by the disobedience alleged, and the order adjudging the plaintiff guilty of a contempt was for that reason reversed as erroneous. Fischer v. Raab, 81 N. Y., 235. A simple question of law was thus presented to the court as to whether all of the elements constituting the offense of contempt appeared on the application for the commitment. Whether they did or did not in no sense constituted a jurisdictional question. The court concededly had jurisdiction of the parties and the subject-matter of the application, and we think authority to determine whether a contempt had been committed or not; and the question for its consideration was whether the facts of the case brought it within the statutory definition of a contempt. An erroneous decision of that question in no sense affected the jurisdiction of the court over the subject-matter of the application. In a similar case it was said by; this court that the fact that a justice of the peace “had jurisdiction of the person of the plaintiff, and of the subject-matter then pending, did not give him judicial authority to adjudge her guilty of a contempt, and to imprison her tnerefor. To have that authority there must have arisen before him facts which gave him power to consider of the question whether there had been a contempt committed by her. When facts arose which gave him that power, he had a right to adjudicate upon them, and is not hable to an action, though he may have held erroneously as matter of law.” Rutherford v. Holmes, 66 N. Y., 370.

In the present case the court made an order, upon the application of the plaintiff, referring a certain disputed question of fact to a referee to hear and determine, and, in case such report was against the plaintiff, that he should pay the referee’s fees incurred thereon. The plaintiff cannot question the validity of this order, for it was made at his request, and upon his stipulation to pay the fees in the event provided for. The order was therefore lawful, and such as the court had a right to make under the circumstances. The report of the referee being against the plaintiff, he was required to pay the fees, and take it up; but this he neglected and refused to do. For this refusal he was adjudged guilty of contempt. The disobedience of its. order by the plaintiff gave the court jurisdiction of the subject-matter, and called upon it to determine whether a contempt had been committed or not. The right to adjudicate upon this question did not depend upon the fact whether the plaintiff was guilty of a contempt, but whether a case had been made calling for an adjudication upon that question. The power of che court to entertain jurisdiction of an action or proceeding does not _ depend upon the existence of a sustainable cause of action, but upon the performance by the party of the prerequisites authorizing it to determine whether one exists or not.

In Harman v. Brotherson (1 Deno., 537), the defendant, a judicial officer, had awarded a copias upon affidavits which did not disclose such a cause of action as subjected the defendant to arrest therefor. He was, however, arrested and imprisoned, and in an action against the judge for false imprisonment it was held that he was exempted from liability by reason of the judicial character of his determination.

In Landt v. Hills (19 Barb., 283), a county judge was prosecuted for false imprisonment for granting an order of arrest which was afterwards vacated upon the ground tnat the affidavit upon which it was founded did not show a sufficient cause for arresting the party. It was held, however, that the “decision and the order protect the party applying for it, and the attorney and all persons acting in obedience to the order;” that the affidavit presented “a state of facts which called upon the officer to pass judicially upon the question, and to determine whether a case for an order was made out or not.” “It presents, to say the least, a colorable case, and that is enough to protect the officer who issued it.” It was further said “ that the doctrine that the judicial officer is protected whenever he has jurisdiction, and enough is shown to call upon him for a decision, even though he err grossly and even intentionally, has long been firmly established. Upon the same principle of public policy, parties who in good faith institute the proceedings, and act under and in accordance with judicial determination, should be protected from accountability as trespassers whenever the officer is entitled to protection.” This case is largely and approvingly quoted from in Marks v. Townsend (97 N. Y., 599).

In Miller v. Adams (7 Lans., 133), affirmed in this court (52 N. Y., 409), the defendant was prosecuted for false imprisonment in procuring an attachment for contempt against a third party for not appearing before the judge in supplemental proceedings, in obedience to an order requiring him to do so. The affidavit upon which the attachment was issued was held, upon appeal, to be defective, and not to show the existence of the contempt alleged. It was held, however, that it constituted a protection as well to the officer issuing it as to the party procuring it; that the officer issuing the attachment had “jurisdiction of the matter, and acted judicially m making the order, and it is entirely clear that he cannot be made answerable as a trespasser for an error in judgment.”

It seems to us that the case of Williams v. Smith (108 E. C. L., 596), is undistinguishable in principle from this. As concisely stated by Justice Erle, it was as follows: “The master of the rolls decided on the facts that Wiliams was guilty of contempt in not obeying the order. Such is the judgment of the master of the rolls on the very facts between the parties. The legal inference which that learned judge drew from the facts which were presented to him on the part of Williams was that he was guilty of a contempt. Upon appeal the lords justices were of opinion that the master of the rolls came to an erroneous conclusion, and they reversed his decision. That is a totally different thing from setting aside the attachment for irregularity in the proceedings.” It was held that the decision of the master of the rolls was a judicial determination that protected the parties acting under it, as well as the officers making it.

The rule to be deduced from these authorities seems to be that when a court is called upon to adjudicate upon doubtful questions of law, or determine as to inferences to be drawn from circumstances reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial function in their determination, its decision thereon does not render an order or process based upon it, although afterwards vacated or set aside as erroneous, void, or subject the party procuring it to an action for damages thereby inflicted. Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises; and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void, and afford no justification to the parties instituting them as against parties injuriously affected thereby. But if the facts presented to the court call upon it for the exercise of judgment and reason, upon evidence which might in its consideration affect different minds differently, a judicial question is presented, which, however decided, does not' render either party or the court making it liable for the consequences of its action.

It is further claimed that the defendants made themselves hable in this action by refusing to consent to the discharge of the plaintiff by the sheriff after he had complied, as it is alleged, with the terms of the committment, and for opposing, before the special term, motions made for his discharge. These proceedings all took place before it was finally determined that the plaintiff was not guilty of a contempt in refusing to obey the order referred to, and, so far as anything appearing in this record shows, when the defendants naturally believed that the plaintiff was rightfully imprisoned thereunder. The motions were denied by the courts before whom they were made, and it must here be assumed that they were rightfully denied, for the reason that the plaintiff had not complied with the terms of the order entitling him to a discharge. If the defendants were not hable for damages for the original imprisonment, it is quite certain that they were not responsible for the action of the sheriff or the court in continuing it. No obligation rested upon the defendants to consent to or procure the discharge of the plaintiff, as the right to such relief depended solely upon his compliance with the terms of the order committing him.

Some claim is made that the commitment was void for not containing the statement that the disobedience referred to as the contempts had defeated, impaired, impeded, or prejudiced some right or remedy of the defendants in the action. Not only the order and affidavit upon which it was founded, but the commitment itself, stated in detail the proceedings which it was claimed the disobedience in question affected, and presented all of the facts upon which the judgment of the court in awarding the commitment was based, and fully complied with the requirements of the rule in respect to the contents of the commitment.

The judgment of the court below should be affirmed, with costs.

All concur.  