Other cases in which the objection was raised and overruied, that the court repeated certain propositions of law in special and general charges, are: Smart v. Nova Cesaria Lodge, 6 C. C (N. S.), 15, affirmed without report, 73 0. S., 387; Railway Company v. Moreland, 12 0. C. D., 612, and affirmed without report, 60 O. S., 604: Traction Company v. Baron, 2. N. P. (N. S.), 633; Curlis v. Brown, 9 Oh. App., 19, at 22.

In the opinion of the court no error prejudicial to the defendant was committed, and its motion for a new trial is therefore cverruled.

IMMUNITY AGAINST CIVIL ACTIONS.

Common Pleas Court of Franklin County.

WESLEY C. BATES V. SAMUEL L. BLACK ET AL.

Decided, February 20, 1915.

Conspiracy-Not Ground for a Private Suit, Unless-Damages Suffered Must First be Shown-Immunity in Performance of Judicial Duties Void Judgments Distinguished from Those Which at Most are Only Erroneous-Sham Pleading.

1. Under the rule a civil action does not lie against alleged conspirators unless something is shown to have been done, independent of the conspiracy, which resulted in damages to the plaintiff, a suit can not be maintained against a group of judges, jurors and other judicial officers because of humiliation and injury resulting from an alleged illegal prosecution and commitment to jail for contempt; nor for prosecution for criminal libel, resulting in convic tion and judgment in a court having full jurisdiction, which judg ment is still in force; nor on other charges growing out of such contempt and criminal libel proceedings.

2. Moreover, judges of courts of general authority are invested with inmunity from private suits directed against them individually because of judicial acts performed, and this is true regardless of alleged improper motives in the performance of such acts.

3. A motion to strike from the files a petition directed against judges, jurors and others, based on such causes of action, may be granted under the inherent power of the court.

This cause is now submitted upon the motion of defendants, Samuel L. Black, M. R. Patterson, Franklin Rubrecht and Horace S. Kerr to strike the petition in this case from the files "for the reason that it states no cause of action, shows that no cause of action exists in favor of plaintiff against the defendants, and that the filing thereof was a pretext to scandalize courts and officers and for other ulterior purposes.'

Thirty-two persons are made defendants to this action, among them being the six judges of the court of common pleas of Franklin county, the probate judge of said county, the police judge of the city of Columbus, twelve persons who served as jurors in said police court and three justices of the peace. The plaintiff in substance alleges that his cause of action "is founded upon a series of illegal and unlawful acts committed by defendants, from time to time, by several or all of defendants conspiring together, aiding and acting together, or several of said defendants acting in less numbers, but under a common understanding and for a common purpose to accomplish an unlawful and illegal and malicious prosecution of plaintiff.”

The general rule is, that a conspiracy can not be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. The damage is the gist of the action, not the conspiracy." Cooley on Torts, 2nd ed., 143.

"As it is the wrong accomplished-in other words the deprivation of some right-that must support the action, it follows that if what the plaintiff has been deprived of was not a right at all but an advantage merely hoped for, he can not maintain his suit." Cooley on Torts, 144. See also 2 Bates Pleading 1231 and 8 Cyc., 645.

The question presented, therefore is, what wrong does the petition show the plaintiff has suffered, or what right has he been deprived of that would entitle him to maintain an action, independent of the alleged conspiracy against one or more of the defendants named in the petition?

The first alleged wrongful act is in substance that Samuel L. Black, who the petition shows, was the judge of the probate and

juvenile courts of Franklin county, Ohio, did on the 6th day of February, 1914, unlawfully instigate certain contempt proceedings against said plaintiff, and by false statements of facts, supported by a fraudulent and false certificate or mittimus commit said plaintiff to the Franklin county jail under an illega! sentence to the humiliation, injury and damage of said plaintiff. It appears from the petition that the plaintiff commenced habeas corpus proceedings in the court of common pleas of said county, presumably for the purpose of being released from his commitment for said alleged contempt, and that the same was heard by Thomas M. Bigger, one of the judges of said court, but the petition fails to state what disposition was made of the habeas corpus proceedings. There is no averment, however, that the plaintiff was discharged, or that the sentence of the probate court has ever been vacated or reversed.

The averments of the petition in respect to the contempt proceeding, appears to be more in the nature of a charge of false imprisonment than one of malicious prosecution. The gravaman of this charge is the unlawfulness of the imprisonment. petition failing to show that the sentence of the probate court has been vacated or reserved, it is conclusively presumed that the plaintiff was lawfully sentenced and imprisoned.

The

If the language of the petition in reference to the contempt proceeding be construed as stating a cause of action for a malicious prosecution, the same result must follow for the reason that the judgment, so long as it remains in force, will be conclusively presumed to have been rendered upon probable cause therefor.

The plaintiff's theory, as disclosed by his brief, is that the contempt proceedings had against him were void and not merely erroneous or irregular.

Is this theory supported by the averments of the petition when they are alone looked to?

We find it stated in the petition, in substance, that Samuel L. Black, was probate judge of Franklin county; that Samuel L. Black "did on the 6th day of February, 1914, unlawfully instigate certain contempt proceedings against said plaintiff and by false statements of facts, supported by fraudulent and false cer

tificate or mittimus commit said plaintiff to the Franklin county. jail under an illegal sentence."

It is apparant that the plaintiff inadvertently used the word "instigate" in the place of the word "institute" and that it was his intention to charge Black with instituting said contempt proceedings. The power is conferred by statute upon courts, and under certain circumstances the judges thereof to punish for contempt, and the statute prescribes the procedure therefor. General Code, Section 12136, et seq.

It has been held by our supreme court that:

The power to hear and determine a cause depends upon jurisdiction; and it is coram judice whenever a case is presented, which brings this power into action."

"But before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal to answer the charge therein contained."

"When these appear, the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred, and whether determined rightfully or wrongfully, correct fully or erroneously, is alike immaterial to the validity force and effect of the final judgment when brought collaterally in question." Sheldon v. Newton, 3 O. S., 494.

In this case the statute gave the tribunal capacity to entertain the complaint against the plaintiff for contempt. The petition shows that the complaint was actually preferred and the plaintiff brought before the court or judge to answer thereto.

Under these circumstances, according to the authorities cited, jurisdiction attached and became perfect. The proceeding was not, therefore, void as claimed by the plaintiff.

If he desired to avoid the effect of the judgment against him, the Statute Section 12146, gave him the right to prosecute error, but he had no right to attack the judgment collaterally, as he has attempted to do in this action.

It further appears from the petition that Samuel L. Black

filed in the police court of the city of Columbus, Ohio, an affidavit in which he charged the plaintiff with the crime of criminal libel; that the plaintiff was tried thereon in said court before defendant, Samuel G. Osborn, the judge thereof and a jury; that he was convicted and that said judgment is still in force. There can be no question but what the court had jurisdiction of the subject matter of this case, under the law, and the other facts necessary, to confer complete jurisdiction, are shown by the petition. This proceeding was not therefore void as claimed. Proceedings in error are now pending in the court of appeals of Franklin county to reverse the judgment rendered against the plaintiff, and so long as that judgment remains in force no action can be prosecuted against any person upon the ground that the same was a malicious prosecution, the presumption being that there was probable cause for the action and the judg ment rendered therein.

In the case of Dunlap v. Glidden et al (31 Maine, 435) 52 Am. Dec., 625, the court in its opinion said:

"This cause of action in these suits is the same, but the same defendants are not all joined in each of them. The declarations allege in substance, that Benjamin Glidden commenced an action against the plaintiff to recover several parcels of real estate, that a verdict was rendered in that action in favor of Glidden and judgment was entered on the verdict; that all of the defendants fraudulently conspired together to defeat the plaintiff's title, and to aid Glidden in his suit and that by the false testimony of two of the defendants and others, the verdict was obtained against the plaintiff.

"These actions are brought to recover damages arising from the judgment obtained by Glidden against the plaintiff and if they should be sustained, the record would present the anomaly of a judgment remaining in full force and of another, in which damages were rendered, on account of the existence of the former one. But the judgments against the plaintiff, so long as it remains in force, must be considered as true and just. He can not be permitted to aver the falsity of that judgmnet, as the ground for the recovery of damages. It constitutes in itself a clear and unequivocal denial of his allegations. He says, that by the fraud and conspiracy of the defendants, he has lost the land, but the judgment imports that it was properly rendered in the ordinary course of judicial proceedings."