| Show JUDICIAL RULING TERRITORY OF UTAH tried DISTRICT COURT paul englebrecht christian I 1 and frederick lutz plaintiffs 1870 against salt lake city jeter clinton september term J D T mcallister andrew burt and others defendants opinion of chief justice james ja B mckean the plain plaintiffs tIfIs bring this action against the defendants under the new now civil code of utah and charge in their complaint that on the day of august 1870 in the city of salt bait lake the defendants di did unlawfully wilfully and maliciously destroy a large quantity of brandy wh whiskey yi 8 key wine and other liquors with the vessels containing them ac the property of the in value to the sum of and the the plaintiffs demand judgment against the defendants in a sum equal to three times the value of the goo goods dal to wit in the sum of T they ey base their claim upon sec of an act in relation to crimes and punishment see laws of Utah page 59 which reads as follows if any person maliciously injure deface ae or destroy any building or fixture attached thereto or wilfully or maliciously injure destroy or secrete any g goods 0 0 ds 1 chattels or valuable paper of a another n 0 t her or maliciously prepare any deadfall dig any pit or set any gun or arrange any other trap to injure an others person or property he shall be imprisoned not more than one year or fined not exceeding five hundred dollars or both fined and imprisoned at the discretion of the court and is liable to the party injured in a sum equal to three times the value of the property so destroyed or injured or damage sustained in a civil action the complaint is verified the defendants fend ants clinton needham ashman and john Y smith unite in an answer which contains a specific denial to each allegation of the complaint the defendant mcallister answers separately and denies specifically each allegation of the complaint and then alleges in substance that on the said day of august 1870 he was city marshal of the said city and seized and destroyed the said property in due form of law and by virtue of a warrant lawfully issued to and commanding him so to do setting forth in his answer the substance of said warrant and denying that he did such act unlawfully fully fally wilfully or maliciously burt and all the other defendants u unite nite in an answer in which they specifically deny each allegation of the fhe complaint and then allege in substance that mcallister was such city marshal etc and that by command etc the they y aided him as a posse commit atus alus and deny that they did so unlawfully wilfully fu R or maliciously the T e plaintiffs demur to all those portions 0 of mcallisters McAlli and burts burus answers after the specific denials to each allega the coap complaint on the grounds substantially that defendant clinton the thel alderman who issued the warrant had no jurisdiction nor or authority to issue the game same and that the warrant was void upon its face mr maxwell and mr baskin for the demurrer snow and hoge and mr miner winer opposed Ic rean KEAN C J the code provides that wat the answers of the defendants shall shail contain first if tiie the complaint le be verified a specific denial to each allegation of the complaint controvert ed by tae tile defendant ac 11 seconda state lii any ans new matter matten or counterclaim constituting a defense in ordinary and concise language bee bec bee see 46 it albo also provides that the defendant may set forth by answer as many fences defences de and counter claims as be he may inay have see bee seo see 49 it further farther provides that the plaintiff m may 3 v within 1 t h ln the number af pf days ays etc de demur r a u r to the same for insufficiency suin cleney clency stating in his demurrer the grounds thereof secal sham sham and irrelevant answers and defenses defences de fences and so much of any answer aaman be be redundant or immaterial may be stricken 0 out ut on motion and upon sueh huch buch uch terms as the coart court in its discretion may I 1 impose impose 11 sees 50 Ss 57 67 A motion not a demurrer is the remedy for these last named defects the counsel for the plaintiffs plaintiff 4 claim that the judgement jud gement ement re rendered by defendant clinton dinton the alderman was wag clearly without jurisdiction that the warrant issued thereon hereon Jt to the city marshai marshal mcallister was clearly void y A upon its ita face that they this are no tion to any of the defendants and that those portions of the answers in which the judgment and warrant are setup set bet up as defenses defences de fences are and should be stricken out oat for insufficiency 11 few few principles are better settled than flati thatis f a court act without t authority its judgments are not merely voidable they are void and the magistrate who renders readers the tha judgments and all officers and persons who aho aid in executing them are liable as trespassers and any person bon son aggrieved thereby may sue and recover the fall amount of the damages sustained by him 2 hilliard on borts torts W I 1 igo note noce no teA cea A da 44 4 5 murd surd onka onha beas carp corpus 1823 1833 3 1 chitty on pleading 78 blood vs davre sayre IT 17 gug cable isble vs cooper 15 johns vs keys 13 rohns J prata praet vs gardner 2 gushing 63 D dygert 1 ert vs schenck 23 mend wend aa sarr sarp ay or ord y vs bow dow bec sec vs tae the pe people OP le 25 sec 70 if if this action had been brought to re cover only the value of the goods de st is royed troyed and if the ju judgment d ament and war were void an and d the defendants trespassers as aas claimed d bythe by the plain plaintiffs tills upon which question it is not necessary now to express an opi opinion nion bhe the plaintiffs I 1 demurrer must fiust inevitably na have ive been sustained for in that event mb no matter how innocent might have been teen the intentions of the defendants neither a void j judgment ud ament nor a void warrant nor both together could protect them but the plaintiffs have chosen to bring an action to recover a statute penalty and demand a judgment in a sum equal to three times the value of the goods de 7 st royed noyed in such an action it is not suin sulf sufficient to allege that the act complained of was uni unlawful it is necessary to allege and the cifra do allege that the act was wll wil wilfully and maliciously done this brings directly in issue the intent of the defends defenda defendants rits and any defense which they inay may have against the charge of wilful and malicious intent may be set forth in their answers code becs sees 46 and 49 even though the derena defend ants sots were now to admit that ment and warrant in question were vald void and aad hen ben bencene hence ceno protection to them if they were sued in trespass for the value of the goods still may they not plead in this action for the statue penalty and prove before the jury as be bealine bearing arine upon the question of intent that they acted by mistake under a void jud jad judgment ment meat and warrant I 1 think they may imay the defendants insist however that the judgment and warrant were valid if in this they are right they inay may make the most of them as a defense on the merits to the action if in this they are wrong still they may ma make ke the most of them as a de defense bense P against the charae charge of wilful malice the warrant was issued only against englebrecht ngI ebrecht and his bis property and it ibb is alleged that thab the property destroyed belonged wall wali to ali ail all tile the plaintiffs as partners but eat ali all ail the pista plain pia pla latiffa tim rely upon the bame same charge of wilful and malicious iu in ten tand the defendants anay rely upon whatever defense they may have to meet this charge if tb the e defense is good in law the court may so hold bold if it is goodin good in fact the jury may BO nind find the converse of the proposition is true without passing upon the question of the validity of the judgment and the warrant it Is sufficient to say that they may be relied upon for wha whatever ever they may be worth at least upon the question of wilful and malicious intent the demurrer must be overruled |
