On Motion for Rehearing.
ELLISON, J.Notwithstanding the foregoing opinion states, in terms, that the present case does not belong to that class wherein effort has been made to make judges of courts liable in darn-ages for conduct in their judicial action; notwithstanding we put the ground of our decision upon the fact that the only thing sought by the petition is to set aside a judgment and not to make judges liable for rendering it; a motion for rehearing has been filed in which much undisputable authority is cited to the effect that it was against the policy of the law to hold judges of courts personally liable for their judicial action. If such was the object of plaintiff’s bill, the authorities collected would be in point. But as nothing of that nature is askéd they have no application. It also said that even if damages are not claimed, judges should not be harassed with necessity of employing attorneys and paying costs and thus have their minds distracted from official business. That, too, is conceded in the opinion. They were improperly joined with the licensee as parties defendant; but, as stated in the opinion, they waived *437the misjoinder by not making proper objection. Since the judges are not necessary parties and should not have been joined, they should have raised the objection. If, when the case reaches the circuit court for trial they still fail to object, it would be well if the case was dismissed as to them.
The petition does not contemplate that a mere error or mistake was made by the judges; for error or mistake, however gross, could not affect the judgment. The petition charges and the proof must show, that unlawful, wrongful and willful acts were committed on purpose and with the fraudulent view of accomplishing the wrong charged. With the concurrence of the other judges, the motion is overruled.