Norwich bulletin., 1918-07-10
PROBATE JUDGE NOT
 PERSONALLY LIABLE
Though He Acted in Excess of Juris- diction-Deeision in East Lyme Csse.


 Case.
 Probate Judge Austin l. Bush of East Lyme is held not personally lia ble for damages from the way in which he handled as probate judge the matter of the estate of the late Clara Nj. Root of East Lyme. according to a decision handed down by Judge John H. Keeler of the superior court on Tuesday, al though Judge Keeler says that MT. Bush undeniably acted in excess of the jurisdiction of the. probate court.
 The case was brought against Judge Bush by Olivia A, Case of East Lyme: a sister of Mrs. Root. The death of Mrs. Root occurred on June 19, 1913. and Mrs. Case came into the posses sion of real estate at Pine Grove in the settlement of her sisters estate by J. J, Lawless and Fife Haynes, two administrators appointed by Judge Bush. But on Oct 2t, 1915, Maria L. Kaseewiez of Brooklyn, N. Y, ap- peared with what purported to be the will of Mrs Root. Thereupon, the probate judge set aside the former ad- anciilafy adninistartrix with the will annexed and passed an order for Mrs. Case to make an accounting to the court of the rentals she had received from the real estate.
 Mrs. Case brought suit against the judge of probate for damages and the case was tried here several weeks ago.
 In his memorandum of decision Judge Keeler uses the following words:
 The defendant in this case undenia- bly, acted in excess of the jurisdiction of the probate court If to this fact there be added the fact that he acted mi af1x plainly be personally liable. From the facts proved, however, I cannot find malice or. corruption. The de- fendant in disposing of the proceed ings which form the subject matter of this action acted heedlessly, erro- neously and without regard to the re- responsibilities and preprieties of his of ice. Although noIninally an attorney at law and occasionally practicing as such, he apparently had no knowledge of the law relating to the matter in hand, and although his attention was called by counsel to the law bearing on the case, he omitted in any way to inform himself. But mere stupidity l and ineptitude, however gross, cannot constitute malice; and there are no other facts in the case from which 1 malice or corruption can be inferred or found
 l The case then turns upon the claim l of the plaintiff that his acts in excess of Jurisdiction rendered the defendant l liable. The argument in support ot this contention is, briefly, that the de- fendant had no Jurisdiction of the | subject matter, that the subject mat 1 ter of administration by the probate court is unadministered property of g deceased person, and that there was nc such property concerned. As a fact there was not. Hence the proceeding; were entirely coram non judice. Int answer to this contention is that thC ] probate court had jurisdiction of tht class of cases including unadministereC l estate of a decedent and that the CT, roneous and void assumption of juris diction in the particular case did no render defendant liable personally. Our courts of probate are courts O 1 limited jurisdiction, not proceeding ac cording to the course of the common siveIy to determine their own juris diCtion.
 Does this lack of power render
 probate judge personally liable for al excess of Jurisdiction?
 There are decisions, mostly of earl
 date, holding in similar cases tha
 such liability exists.
 On the other hand, there are de
 cisions that judges of inferior court
 of limited jurisdiction have the sam
 protection from personal liability a
 obtains in the cases of judges of su perior courts of general jurisdiction.
 There is, however, a middle groun
 taken in many jurisdictions, whic seems established by the weight ( authority and has been stated thus "A court of limited Jurisdiction ha jurisdiction of the subjesct matter a given case, if it has jurisdiction (
 the class of cases to which theSpar ticular case belongs" In this viev a wrong exercise of Jurisdiction in given case falling in class of sut ; ject matter to which jurisdiction in tn
 court properly belongs, is an excess Jurisdiction. and not a total failul <, thereof, and the proceedings had al
 not coram non judice. nor entirely
 usurpation. rendering the judge pel
 sonally liable.
 Judge Keeler cites authorities fc this last doctrine which he says seen
 to him to be the best reasoned, and | l gives judgment for the defendant wit
 costs