State, ex rel. Egan, v. Wolever et al. In the case of Little v. Moore, supra, it is said: "It may be laid down as a universal position, which admits of no exception, that for a mere error of judgment in the execution of his office, no action can be maintained against a judge of any court. With respect to special and limited jurisdictions, it is said, that if the judge shall exceed his powers, the whole proceeding is coram non judice, and void; and that all concerned in such void proceeding, as well the judge, as the ministerial officer, are liable in trespass; but while within his jurisdiction, adjudicating upon matters lawfully submitted to him, how erroneous soever his opinions, he is not liable. In courts of general jurisdiction, an action never lies against the judge, because he has jurisdiction of all cases; in courts of limited jurisdiction, it lies only when he exceeds that jurisdiction, and therefore is not in the exercise of his judicial authority. The principle, therefore, is the same in all courts.” The case of Pratt v. Gardner, 2 Cush. 63, was an action on the case in which it was alleged in the declaration that the defendant, who was a justice of the peace, wilfully and maliciously received a false and groundless complaint against the plaintiff for a criminal trespass, and, thereupon, wilfully and maliciously issued his warrant, upon which the plaintiff was arrested and carried before the defendant for trial, and was by him wilfully and maliciously tried and convicted without being allowed an opportunity to obtain witnesses and counsel; that upon such conviction the defendant maliciously sentenced the defendant to pay a fine of two dollars and costs; and that upon his refusing to pay the same, plaintiff was committed, by the order and warrant of the defendant, to the common jail, where he remained imprisoned for one day, until, to obtain his discharge there from, he was obliged to and did comply with the defendant's order to pay the fine and costs imposed upon him by the sentence. The court held that the action could not be maintained. Referring to the case of Yates v. Lansing, supra, and other cases State, ex rel. Egan, v. Wolever et al. of similar tenor, and of the rule there laid down the court says: "These rules extend as well to a justice of the peace as to any other judicial officer, acting within his jurisdiction, in a judicial capacity." Even in courts of general jurisdiction there may be a case where the judge would be liable to an action. In the case of Bradley v. Fisher, supra, a distinction is drawn between a case where the court has exceeded its jurisdiction and where it has acted without jurisdiction. The court says: "A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subjectmatter. When there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible." In such case the judge of the court of general jurisdiction occupies precisely the same position as the judge of limited jurisdiction who has exceeded his jurisdiction. Having no jurisdiction he is no judge, and this suggestion will aid us in determining when a judge of an inferior court can be said to have so exceeded his jurisdiction as to render him liable. In our opinion there is such excess of jurisdiction only where the entire action of the court has been extra-jurisdictional, when he has assumed a jurisdiction which has never existed, and that there is no such excess of jurisdiction in a case where the magistrate, having jurisdiction, erroneously refuses to grant a change of venue to which the party asking it is entitled, and thereafter, assuming to retain jurisdiction of the cause, tries, condemns and punishes the party. The position of appellant's counsel in this case is that appellant had taken all the necessary steps to entitle him to a change of venue, that such acts ousted the jurisdiction of the court, and that all the subsequent steps taken were coram non judice, and void, and were, within the meaning of the rule, in excess of the jurisdiction of the court, and that he State, ex rel. Egan, v. Wolever et al. is therefore liable, because when he tried and condemned appellant he had no jurisdiction. In this we think they are in error. It must be conceded that if the necessary steps were all taken to entitle appellant to the change of venue, the action of the mayor in thereafter, over his objection, assuming to retain jurisdiction, and the resulting trial and condemnation, were coram non judice, and void. Shoemaker v. Smith, 74 Ind. 71; Goldsby v. State, 18 Ind. 147; Manly v. State, 52 Ind. 215; Duggins v. State, 66 Ind. 350; Krutz v. Howard, 70 Ind. 174; State v. Shaw, 43 Ohio St. 324; Center Tp. v. Board, etc., 110 Ind. 579; Krutz v. Griffith, 68 Ind. 444; Burkett v. Holman, 104 Ind. 6. Yet this would not necessarily render the mayor liable to an action. True, in that case he has exceeded his jurisdiction, but not, we think, in the sense in which that word is used in the cases. At least not in the sense in which the use of the word is justified by principle. We are inclined to think the use of the words "excess" and "exceeded," in that connection, unfortunate, as not expressing with accuracy the idea intended to be conveyed. A judge, even of a court of inferior and limited jurisdiction, only exceeds his jurisdiction, so that he is liable to an action, when he acts without jurisdiction—when he assumes a jurisdiction with which the law has never clothed him; or when, having had jurisdiction, he has lost it in some way, as by a discontinuance of the cause, and afterwards, without notice, assuming to act, as in the case of Dyer v. Smith, 12 Conn. 384; or when, having jurisdiction, he should grant a change. of venue, and thereafter assume to act without consent of the parties. Having jurisdiction, he does not lose it by the mere fact that an application for a change of venue is made. The application for a change of venue in itself calls for judicial action. Ruling on such a motion is a judicial act. Having jurisdiction of the subject-matter and of the person of the defendant when the application is made, his decision State, ex rel. Egan, v. Wolever et al. thereon is privileged to the same extent as would be the decision of a court of general jurisdiction on such a motion. This means, of course, that whether he decides it right or wrong, he is protected without reference to the motive that may impel him to the decision. If he decides the motion wrong, and is protected therein, it will not do to say that the immunity ends with the decision of that single question, but it extends to such additional rulings and such additional action as necessarily or legitimately might follow if the decision was correct. The conclusion we have reached renders it unnecessary to decide several other questions which are presented by the record and argued by counsel. We will, however, refer to some of them for the reason that they make more clear the correctness of our conclusion. The affidavit first presented to the mayor was not sworn to, and appellant demanded that the mayor administer the oath. This the mayor declined to do, and counsel for the appellees seriously insist and argue that it was not his duty to do so. Without deciding this question, it is enough to say that the decision of such question by the mayor was necessary, and was clearly a judicial act. After the refusal by the mayor to administer the oath the appellant was sworn to the truth of the affidavit by a notary public, and renewed his motion. Applications for a change of venue from a mayor are governed by the law governing change of venue from justices of the peace. The statute relating to such change says "Changes of venue shall be granted whenever affidavit shall be made before the justice by either party," etc. Elliott's Supp., section 297. Appellees insist that this requires that such affidavit must be made before the justice or mayor, and that an affidavit made before a notary public can not be recognized. Like the preceding question, this again compelled a decision by the mayor, which was essentially judicial. Kempshall v. East et al. Again, the prosecution was in the name of the State of Indiana v. James Aikens. Appellant responded to this name and entered a plea of not guilty. The statute, section 1742, R. S. 1881, prescribes that "If a defendant be accused by a wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment or information." Without declaring his true name in any other way, appellant presented the affidavit herein before set out. Appellees insist that the court could not recognize an application for a change of venue by "Mike Egan" in a prosecution against "James Aikens," and this question the mayor was compelled to decide, and such decision was judicial in its nature. While not necessary to the decision of this case, it is right to say that in the opinion of this court the cases of Dietrichs v. Schaw, 43 Ind. 175; Barkeloo v. Randall, 4 Blackf. 476, and Krutz v. Howard, supra, in so far as they relate to questions herein considered, rest on questionable ground. The court below did not err in sustaining a demurrer to the complaint. Judgment affirmed with costs. Filed Feb. 19, 1891. No. 14,732. KEMPSHALL v. EAST ET AL. PLEADING.-Action on Bond.-Breach of Warranty.-Cross-Complaint --In an action on the bond of an insurance agent, a cross-complaint, based on a breach of contract, which alleges that the company sold to the agent renewals warranted to be worth a certain sum; that they were afterwards ascertained to be worth a much less sum, whereupon the contract was cancelled and the notes given in consideration for the renewals surrendered, does not state a cause of action, as the complainant is not shown to have been injured by the breach of the warranty. SAME.-Answer.--Release of Bond.--An answer by the sureties on such |