Taylor v. Goodrich (25 Tex. Civ. App. 109, 1897)

FISHER, Chief Justice.

This is an action by appellant, Taylor, against Judge Goodrich in damages for false imprisonment. A general demurrer was sustained to the petition, and, the appellant declining to amend, his case was dismissed, with judgment in favor of appellee that he go hence with his costs.

The petition alleges that the plaintiff was a practicing attorney and that the defendant, Goodrich, was the judge of the nineteenth Judicial District, embracing the county of McLennan, and then proceeds as follows

“That while defendant was acting as judge as aforesaid, and heretofore, to wit, on the 23d day of June, 1894, C. M. King, Frank Dean, I. C. Puckett, Chance Edwards,- and Jack-Box, of said Coryell County, charged with the murder of Ed. Cash, in said Coryell County, by affidavit before P. S.. Woodard, justice of the peacé of precinct number 1, said Coryell County, petitioned defendant as such judge for the writ of habeas corpus, alleging, among other things, that they were illegally restrained of their liberty by John W. Hammach, the sheriff of said Coryell County, by virtue of certain writs issued by, said justice of the peace, and praying-'for their discharge from the further custody of said sheriff. That the defendant, on the day and year last aforesaid, granted to said named petitioners the writ of habeas corpus and issued the same to the sheriff of Coryell County, commanding him to bring each of said named petitioners before him (the defendant) in -the city of Waco, on Monday, at 9 o’clock a. m., June 25, 1894. That said sheriff of Coryell County, acting in pursuance of said writ of habeas corpus, executed the same on the 25th day of June, 1894, by bringing before defendant C. M. King, Chance Puckett, and Chance Edwards (the presence of the other named petitioners having been waived). That defendant, while sitting -in chambers on the 26th day of June, 1894, set free and discharged all of said named petitioners charged with the murder of Ed. Cash except-."

“Third. That the People’s Voice, a weekly newspaper published in Gatesville, Coryell County, Texas, by G. L. Goodman, the editor and proprietor thereof, in its issue of July 3, 1894, editorially criticised the said L. W. Goodrich, defendant, for discharging the said alleged murderers of Ed. Cash, substantially as follows:

“ ‘You might as well say that black is white as -to undertake to make some people in Coryell County believe that Judge Goodrich acted honestly and conscientiously in the Cash case. * * * Judge Goodrich’s decision in the Cash case has done Coryell County more harm than the murder itself. The former was an outrage on an individual, the latter a most damnable outrage on a whole community and upon justice itself. * * * Things are coming to a pretty pass when a district judge in Texas can be persuaded (?) to turn loose on a community a lot of men charged with a villainous murder, without even investigating the evidence in the case. People will have their opinion in such cases, and they have them in this one, and they are not at all complimentary to Judge Goodrich.’

"‘the cash case.

"‘There was an unexpected turn in the Cash case last week. The habeas corpus hearing was taken up before Judge Goodrich, of Waco, the State being represented by County Attorney Arnold and T. C. Taylor, and the defendants by W. W. Hair, S. B. Hawkins, and H. E. Atkinson. The record as taken before Judge Woodward was submitted as evidence in the case, but Judge Goodrich refused to read it, and would not permit it to be read in his hearing. He told the attorneys that they could state in their argument all the salient points in the record; but when this had been agreed to, and County Attorney Arnold proceeded to comment on the testimony of Frank Jones, the judge stopped him and said he would not hear that portion of the record commented upon, as he did not believe a word of Jones’ statement. The State was ruled against on every point of the ground, and after hearing two or three defense witnesses, which were the defendants and their relatives, the judge rendered a decision turning all the prisoners loose except Jones and Love. This was a great deal more than was expected, and the feeling in Coryell County is running high and Judge Goodrich and those parties who have figured so conspicuously in this matter are being ■severely condemned on every hand. After hearing the decisions, the officers and attorneys for the presecution were considerably wrought up and expressed their opinion pretty freely. To add insult to injury, Judge Goodrich had them brought before him to answer a charge of contempt of court, for daring to criticise his decision in the case. They were not fined, however, but were permitted to return home to tell their people how they had been treated. There is one thing that is evident, Judge Goodrich acted hastily and unadvisedly in this case, or he was unduly influenced by the statements of overzealous attorneys and friends of the defendants. If he claims to have based his decision on the facts in the case, .he must admit that he got all he knew of the facts from the attorneys for the defense, for he refused to investigate the record at all and would not permit the prosecution to read the record in his hearing. He virtually said that he did not believe a word of the record presented by the State, and proceeded to release these defendants on their own statements and statements made by the wife and daughter of one of them. We do not claim that these defendants were the murderers of Ed. Cash, but we do say there is ample evidence in the record implicating them to bind them over to await the action of the grand jury, and nine-tenths of the people of Coryell County believe the same thing, judge Goodrich may have acted honestly in the matter, but it looks very much like a put-up job to turn these men loose on the community without due process of law. If the judge acted honestly he is a very poor judge of law, and if he acted otherwise he must have been fixed, or unduly influenced by these parties who have worked day and night for the last six or eight weeks to prevent justice being done to the murderers of Ed. Cash. We believe, and nine-tenths of the people in Coryell County believe, that these parties ought to have been held until the grand jury met, and we believe further that the ends of justice have been knowingly and willfully defeated by the decision rendered at Waco. The decision was rendered at about 4 p. m., Tuesday, but C. M. • King sent his wife word at about 11 a. m. the same day that they would all be turned loose and he would be home next day. Dispatches were received here at 2 o’clock stating that all the prisoners except Love would be turned loose. How can these facts be explained unless the decision had previously been agreed upon. It can’t be done, and the people of Coryell County will always believe that Judge Goodrich knew what his decision would be before the ease was called. These men were justly indignant at the judge’s action, and they had a right to be, and none of them ever thought of making political capital out of what they said. Their expressions were of just indignation at a judicial crime that had been committed against Coryell County, and they little thought or cared what the result would be. * * *.’

“That the foregoing editorials were published on the 3d day of July, long after the said King and others were discharged by defendant as aforesaid, their cause tried and determined in chambers^ and the defendant’s court adjourned, with nothing left for defendant to do in and about said cause.

“Fourth. That heretofore, to wit, on the 6th day of July, 1894, the’ defendant, while such judge, caused to be entered an order in the minutes of said District Court of said nineteenth Judicial District, directing the clerk of said court to issue a writ of attachment, directed to the sheriff of Coryell County, Texas, commanding him to attach the bodies of J. L. Goodman, charged with publishing, and J. H. Arnold and the plaintiff herein, with inciting and causing, said publications in the People’s Voice as aforesaid, and to bring said Goodman, Arnold, and this plaintiff before the defendant to show cause why they should not be held in contempt of defendant’s court by reason of said publications. That in pursuance of said order, entered as aforesaid, the clerk of said court, on the said 6th day of July, 1894, issued said writ of attachment and heretofore, to wit, on the 7th day of July, 1894, said sheriff of Coryell County, Texas, executed said writ of attachment in the town of Gatesville, Coryell County, Texas, by arresting, seizing and taking into his possession the body of plaintiff, as ordered by said writ of attachment, and on the 9th day of July, 1894, brought the body of plaintiff before defendant, acting as judge of said nineteenth Judicial District, sitting in the city of Waco, McLennan County, Texas.

“Fifth. That plaintiff, on said 9th day of July, 1894, upon his trial charged with contempt of defendant as aforesaid, answered under oath to the jurisdiction of defendant’s court, because said publications were about a cause not then pending before defendant’s court as aforesaid, and among other things answered that he was not guilty of causing or inciting said publications, nor was he in any way responsible therefor, nor had he any interest in said newspaper. Defendant, upon the 9th day of July, 1894, upon hearing the answer of plaintiff and the evidence had upon the trial of said cause, which evidence supported and in no respect differed from plaintiff’s said answer, adjudged him guilty of contempt, as charged in said order, of inciting and causing said publications, and fixed his punishment at three days confinement in the county jail of McLennan County, Texas, and the payment of a fine of $100, and caused to be entered an order committing plaintiff to the custody of the sheriff of McLennan County, Texas, for the execution of said order of commitment. That said sheriff, acting in pursuance of. said order of commitment, July 9, 1894, seized and took plaintiff into his possession and custody, and lodged plaintiff in the county jail of McLennan County, Telas, to serve said three days in jail and to pay or lay out said fine in jail, and held him in said county jail.

“Sixth. That while plaintiff was detained in said jail as aforesaid, James S. Hogg, then Governor of the State of Texas, on the 10th day of July, 1894, directed a telegram to the sheriff of McLennan County, Texas, directing him to suspend the executing of said order of commitment until he, the said Governor, could make further inquiry into the facts upon which said commitment was based, and upon the refusal of the sheriff of McLennan County to'suspend the execution of said commitment, on the 10th day of July, 1894, the said James S. Hogg, Governor of the State of Texas as aforesaid, issued his proclamation of pardon, setting aside both fine and imprisonment adjudged by said defendant, and .fully and unconditionally pardoned plaintiff of said fine ■and imprisonment and ordered said sheriff of McLennan County to release plaintiff from further custody.

“Seventh. Plaintiff avers that said publications upon which said fine and imprisonment for contempt of defendant’s court were based were published, as aforesaid, about said cause of C. M. King and said other petitioners (for habeas corpus) charged with the murder of Ed. Cash as aforesaid, a cause not then pending, but one that had been tried and determined, and defendant’s court, before whom said C. M. King and others were tried, in chambers, as aforesaid, had been duly adjourned. That while plaintiff denies that he instigated, caused or in any manner incited said publications, as is hereinafter pleaded, he alleges that, in so much as said publications were about a cause settled and determined as aforesaid, the newspaper—the People’s Voice—had a right to criticise the defendant’s judicial action, and for the abuse thereof was answerable in libel only, and not for contempt of court, and that defendant therefore had no jurisdiction over the person of plaintiff for contempt of court, and‘so fined and imprisoned plaintiff as aforesaid without having any jurisdiction whatsoever over his person, and plaintiff here now avers that the said judgment fining and imprisoning plaintiff for contempt as aforesaid was null and void and not before a court of law, but before the defendant, L. W. Goodrich.

“Eight. Plaintiff avers that he did not incite or cause said publication, nor contribute to its production in any wise whatever, nor did he have any interest in said newspaper; that he did not know any such publication as aforesaid or of like character would be made in the People’s Voice or elsewhere, and as a law-abiding citizen and as an ■officer of the court by reason of his being an attorney at law, he at all times respected and upheld the dignity of courts and under no circumstances would have intentionally placed himself in contempt of court. Wherefore he says that defendant exceeded his jurisdiction, if any he Rad, which is denied, in imposing said fine and imprisonment for contempt of court, because there was no evidence of criminality or contempt that warranted the commitment of plaintiff, and defendant’s judgment of said commitment was a nullity, and unauthorized by law, and was not the act of a court, but of the defendant, L. W. Goodrich.

“Ninth. Plaintiff avers that the defendant adjudged plaintiff guilty cf contempt as aforesaid and fined and imprisoned him therefor as aforesaid, thereby exceeding his jurisdiction, in that under the law the defendant could only fine or imprison the plaintiff, and not do both.

“Tenth. Plaintiff avers that after he had been committed to the custody of said W. L. Burke, sheriff, and by him placed in jail on the 9th day of July, 1894, as aforesaid, upon the request of plaintiff and his friends, James S. Hogg, the Governor of the State of Texas, first on the 10th day of July, 1894, ordered said Burke, sheriff as aforesaid, to suspend the enforcement of said judgment for contempt as aforesaid, and upon the refusal of said sheriff to suspend the execution of said judgment, James S. Hogg, then the Governor of the State of Texas, fully-pardoned plaintiff of said fine and imprisonment, and ordered that plaintiff be released. That at the time of the attempted suspension of said judgment as aforesaid, that James S. Hogg, then the Governor of the State of Texas, might have time and an opportunity to inquire into and investigate the causes of the incarceration of plaintiff, and at the time of the full pardon of plaintiff and his release ordered by said Governor, who it is here alleged was the duly and legally elected Governor of the State of Texas and had the right to suspend the execution of said order of commitment or pardon the plaintiff as aforesaid, the defendant, not acting as'a court, but as an individual and in his individual capacity, resisted, opposed, ignored, and disrespected the action of the Governor of Texas, and by word of mouth and in writing, not as a court, but in his individual capacity, directed and commanded the said W. L. Burke, then sheriff as aforesaid, to pay no attention to the said action of the Governor of Texas, but to hold plaintiff in jail until he satisfied the judgment of defendant’s court, and that the defendant threatened the said W. L. Burke with violent action in case he did release plaintiff from jail. That the said W. L. Burke was desirous of releasing plaintiff upon his pardon as aforesaid, and would not have held him in custody had it not been for the threats, orders, and directions of the defendant, and it is here averred that after plaintiff’s pardon as aforesaid defendant’s action was that of an individual and wholly unauthorized by law, and that plaintiff’s detention was without authority and null and void.

“'Eleventh. Plaintiff avers that defendant’s action as aforesaid in fining and imprisoning him as aforesaid and detaining him in jail after duly pardoned was without lawful authority and null and void, and was the result of malice and a violent" temper. That defendant was very angry on account of said publications; and in his anxiety to avenge himself willfully, wantonly, and maliciously, and without any reasonable or probable cause or lawful authority, and against the will of plaintiff (notwithstanding his frequent demands for freedom) the defendant, on the 9th day of July, 1894, had plaintiff imprisoned as aforesaid and kept, held and detained him in prison until 9 o’clock a. m. of the 11th day of July, 1894, when plaintiff was released upon his petition for habeas corpus to the Court of Criminal Appeals of the State of Texas.

“That plaintiff’s imprisonment and detention in prison was tyrannical and contrary to the laws of the State of Texas and against plaintiff’s will, by means whereof plaintiff was prevented from transacting his ordinary business or going where he pleased.

“Plaintiff avers that he has always conducted himself as an upright, honest, peaceable and law-abiding citizen, and that his imprisonment aforesaid, not only on account of himself, but his wife and children, caused him great trouble, mental and physical anguish, and the deepest of humiliation. That he sustained a great loss of time in consequence of said imprisonment and was exposed to great costs, and here avers that on account of defendant’s malicious and reckless regard for the law, the liberty of the citizen and the rights of plaintiff, defendant willfully and wantonly contrived to injure the credit, fair name, reputation and character of plaintiff, to his total damage the sum of $15,000.

“Premises considered, plaintiff prays for citation in terms of the law, and on final hearing judgment for his damages and all costs, and will ever pray.”

Opinion.—The request is made to this court to decide the perplexing and interesting questions whether the publications set out in the petition were a contempt of the court over which Judge Goodrich presided, or were simply libels upon his official character, for the redress of which he was solely relegated to a civil action in damages. This request is made upon the contention that the court did not have jurisdiction to punish the plaintiff for contempt, because the publications were not concerning a matter then pending officially before the court, but, upon the contrary, they related to the action of the court in a matter that had been finally determined and disposed of. It is not, and we suppose could not successfully be contended that the publications are true or that they are not grossly libelous and serious reflections upon the integrity of the court. But whether they constituted a contempt of court is a question we are not required to decide, in view of the rulings we make upon other questions in the case. There is a conflict of authority upon this question. Some maintain that a publication reflecting upon the court or judge after the final disposition and conclusion of the proceeding to which it relates is not a contempt, but, if false, is a libel, for which the judge may have his action in damages. In re Pryor, 26 Am. Rep., 749; State v. Anderson, 40 Iowa, 207; Storey v. People, 79 Ill., 48; Cheadle v. State, 110 Ind., 309. Others hold that at common law a publication reflecting upon the court that may bring it into disrepute is a contempt, although the matters to which it relates may have ended and finally concluded. State v. Morrill, 16 Ark., 385; In re Chadwick, 67 N. W. Rep., 1076; State ex rel. Conner v. Stapleton, 23 Law. Rep. Ann., 787. At present we take no stand upon these diverse views, but will dispose of the case upon other grounds.

In the present state of the pleadings there are but two questions which we deem it necessary to decide. The first is whether a judge of the district court, when in the exercise of its general jurisdiction over the subjects of contempts and over the person of one who has been brought before him on such a charge, may be held liable in damages to the one it has punished when as a fact he was not guilty of the contempt or when the alleged contemptuous conduct was not in law a contempt of court. In other words, if such general jurisdiction of the court exists concerning the subject and person dealt with, may it, for exercising such jurisdiction, be held civilly liable for the errors it has committed, or may it be held liable for asserting its jurisdiction in a case where, by reason of its peculiar facts and the law as applied thereto, it should not have done so ? The second question is: Did the Governor have the authority to pardon the plaintiff and remit the fine and imprisonment inflicted by the court, and if so, may the defendant be held civilly liable for the conduct alleged in aiding and assisting and advising in the further restraint of the plaintiff in his liberty after the grant of pardon F

In this connection it is well for us to explain what we understand to be the effect of the averments of the petition. The allegations to the effect that the defendant was an active agent in advising and preventing the sheriff from releasing the plaintiff by virtue of the pardon are sufficient in stating a cause of action against defendant, provided the Governor had the authority to extend the pardon. For these averments are to the effect that the conduct of the defendant in this particular was not that of a court, exercising its judicial functions, but was the act of the judge and that of the defendant as an individual; and if such was the case he would be held liable as anyone else who illegally participated in restraining another in his liberty. The remaining allegations are to thq effect that the court did not have jurisdiction to punish the plaintiff for contempt, and that it exceeded its jurisdiction in this respect. There are statements, in this connection, to the effect that the court, in assummg jurisdiction and inflicting the punishment, acted as a judge or an individual. These statements were evidently based upon the conclusion, previously asserted, that the court acted without jurisdiction, and we do-not understand that it was the purpose to charge by these averments that the judge was not sitting as a court when the contempt proceedings were considered and disposed of. If the judge had heard and determined the matter of contempt and inflicted the punishment at a time when he was not acting as a court, a different case would have been presented, as the proceedings would have been coram non judice and void, for the statute confers the jurisdiction upon the court, and not upon the judge. With this construction of the averments of the petition, we will return to the questions to be disposed of in the order stated.

Article 1130, Sayles’ Civil Statutes, which was in force when the -contempt proceedings were heard and determined, is to the effect that the district courts may punish by-'fine not exceeding $100 and by imprisonment not exceding three days any person guilty of contempt of such ■courts. It was under this statute, it seems, that the court proceeded. There is no statute law which undertakes to define what is a contempt or under what circumstances the district court may exercise its jurisdiction in such matters. But it is well known that the district courts are courts 'of general jurisdiction over subjects under their control, and it must be admitted that the statute that confers jurisdiction upon these courts in contempt cases is as general in its terms