Does the complaint show a right of action in the plaintiff against the defendant? By section 78 of the code of 1883 it is provided chat “ the court may likewise, upon affidavit, showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading ór proceeding in any other particular, and may upon like terms allow an answer to be made after the time limited by this act, and may upon such terms as may be just, and upon, payment of the costs, relieve a party, or his legal representatives, from a judgment, order, or other proceeding taken against him through mistake, inadvertence, surprise or excusable neglect; and when, for any cause satisfactory to the court or the judge at chambers, the party aggrieved has been unable to apply for the relief sought, during the term at which such judgment, order or proceeding complained of was taken, the court or judge at chambers in vacation may grant the relief upon application made within a reasonable time, not exceeding five months after the adjournment of the term.” By section 49 it is provided that “from the time of the service of the summons in a civil action the court shall be .deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.” By section 397 it is provided that “ every direction of a court or judge-made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” And by section 398 it is provided that “motions shall be made in the county in which the action is brought, or, if at chambers, in any county in the same district. Written notices of motions shall be required in all cases except those made during the progress of a trial. ” The authority vested in the judge to grant relief from judgments is found in said section 78. It will be seen that the language of this section is peculiar in specifically referring to notice as a prerequisite in allowing *596amendments, etc., and in not referring to notice as a prerequisite in granting relief from judgments, and by this the judge may have been misled. The judge, having proceeded to grant the relief without notice, doubtless determined as judge that notice was not necessary to warrant his action in the premises. In such determination the judge misinterpreted the law, and the order made and entered by him in the premises was unwarranted. Lane v. Wheless, 46 Miss. 666; Hettrick v. Wilson, 12 Ohio St. 138; Nuckolls v. Irwin, 2 Neb. 66; Mulvey v. Carpenter, 78 Ill. 586; Gruner v. Moore, 6 Colo. 527; Hughes v. Cummings, 7 Colo. 141. As to whether the judge’s acts under the said provisions of our code were simply erroneous, or were in excess of his jurisdiction, we need not, and therefore do not, determine. It is evident that he was acting as judge in the premises, and by virtue of the statute mentioned was so acting in a subject-matter of which he had jurisdiction. According to the weight of authority, such judge so acting is not liable to the party aggrieved thereby, even if the acts so done were in excess of his jurisdiction, as excess of jurisdiction is distinguished from entire want thereof. Lange v. Benedict, 73 N. Y. 12; Bradley v. Fisher, 13 Wall. 335, 351, 352; Cooley, Torts, 419. In Mr. Cooley’s work on Torts, where the subject of immunity of judicial officers from private suits is treated, the law. is stated as follows: “ Whenever, therefore, the state confers judicial powers upon an individual, it confers with them full immunity from private suits. In effect, the state says to the officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state, and the peace and happiness of society; that, if he shall fail in a faithful discharge of them, he shall be called to account as a criminal; but that in order that he may not be annoyed, disturbed and impeded in the performance *597of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the state, speaking by the mouth of the common law, says to the judicial officer.” And in the -case of Bradley v. Fisher, supra, Justice Meld, in delivering the opinion of the court, uses the following language: “The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well-ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country. It has, as Chancellor Kent observes, a deep root in the common law.’ ” It has been determined by this court that our county courts are courts of superior or general authority. Hughes v. Cummings, 7 Colo. 141. In the complaint in this case it will be observed that the judge is charged with having acted maliciously and corruptly in the premises. The decided weight of authority, as well as the better reasoning, sustain the proposition that the motives with which he acted cannot be so called in question. And in the said opinion just quoted from the law is declared upon this particular point as follows: “Hor can this exemption from civil liability be affected by the motives with which their judicial acts are performed. The purity of their motives cannot'in this way be the subject of judicial inquiry.” The court was right in sustaining the demurrer to the complaint. The judgment should be affirmed.
De France, 0., concurs in the conclusion. Rising, 0., dissenting.
Per Curiam.For the reasons assigned in the foregoing opinion the judgment of the court below is affirmed.
Affirmed.