¶1dissenting. — I do not concur in the conclusion reached by the foregoing opinion. It appears to me to be erroneous, in that it fails to properly comprehend and apply the distinction between judgment and jurisdiction. I did concur in the result of the opinion in Londegan v. Hammer, 30 Iowa, 508, whereon the foregoing opinion in this case claims to be grounded. The head-note in that case correctly states the point ruled, as follows: “ A judicial officer is not *502civilly Hable for judicial acts, though his decision in respect thereto be erroneous, where it is not shown that he acted maliciously or corruptly; and this rule appHes to inferior as well as superior tribunals.” In that case the defendant was a justice of the peace and had issued a warrant, upon a proper information filed, for the arrest of plaintiff for the offense of willful trespass in cutting and carrying away timber; and upon the trial or examination before the justice, the plaintiff was required to give bonds for his appearance at the next term of the district court, and in default thereof, he was committed to jail. He was afterward discharged upon habeas corpus^ and then brought his action against the justice of the peace for false imprisonment. It is said in the opinion: “ The justice had jurisdiction to try and determine the cause if the value of the property did not exceed $50. § 1, chap. 28, Laws of 1866. He had jurisdiction to examine and commit for trial before the district court where the value of the property was greater than that amount. Rev., ch. 195, and § 4824. So that, whatever the value of the property, he had jurisdiction over the subject-matter (and of the person of the defendant), his judgment in the premises being subject to be controlled by the value of the property. That he gave an erroneous judgment there can be no question, but it was only an'error of judgment for which he is not to be called upon to defend in a civil action against him. Had the evidence before the justice shown the value of the property to be greater than $50 his judgment would have been in this respect correct. His judgment, however, was not sustained by sufficient proof. It was, therefore, erroneous, in matter of fact.”
¶2My concurrence in the result of that opinion which held that the justice was not liable was grounded upon the idea that he had erred in his judgment respecting the value of the property or timber cut and carried away. That error did not defeat his jurisdiction nor render him Hable to an action. And, assuming his judgment tobe correct,his jurisdiction to imprison, as he did, was not and could not be questioned. But, if he had not, in any event, had jurisdiction to bind over and im*503prison in default of bail, but only to try and determine, then my judgment would have been different. He simply erred in his judgment upon the fact, and did not mistake his jurisdiction under the law.
¶3It is just here that this case differs from that. This defendant had no jurisdiction, under any state of facts involved in the case before him, to imprison this plaintiff. The imprisonment, then, was not the result of an error of judgment, but was an exercise of power in excess of jurisdiction. The defendant in this case, having no jurisdiction or authority, by reason of being mayor, etc., to imprison this plaintiff for the offense charged, he cannot protect himself from liability for such wrong, by virtue of his office. If the defendant here is exempt from liability for imprisoning the plaintiff for two days without jurisdiction or authority, simply by reason of good faith and absence of malice; upon the same principle he would also be exempt if he had sent him to the penitentiary for two years or more.
¶4To my mind, the case, it being conceded as stated in the majority opinion that “the mayor erroneously supposed that authority to imprison was conferred upon him,” falls within the rule announced by this court in Newcomb v. Dewey, 27 Iowa, 381 (i. e. 388), to wit: “ The entire question is, did the court m fact have jurisdiction ? not, did the court decide that it had jurisdiction ? If it did not, in fact, have jurisdiction, then its decision is a nullity; and it matters not what facts it finds, or what question it decides ; unless there was jurisdiction in fact, they are all alike nullities.” This was said respecting a court of general jurisdiction; and it applies a fortiori to a court of limited, or rather of special, jurisdiction, as was that of the mayor’s court in this case.
¶5Having stated the grounds of my dissent it is only necessary to refer to a few of the cases which seem to me to fully support my conclusion. Crepps v. Durden et al., Cowp. 640; S. C., 1 Smith’s Lead. Cas. 378 (800 of 5th Am. ed.); Biglow v. Stearns, 19 Johns. 39; Adkins v. Brewer et al., 3 Cowp. 206; Reynolds v. Orris, 7 id. 269.