8 S.E. 115 | N.C. | 1888
The following is a copy of the material portion of the complaint:
"1. That on or about 13 February, 1885, the defendant W. F. Hudson assaulted and arrested the plaintiff under color of process sued out by the defendant W. W. Hailey before the defendant D.C. Baldwin, and brought the plaintiff before the defendants Baldwin and Turner, justices of the peace.
"2. That defendants Turner, Hudson, Baldwin, and Hailey, on or about the time aforesaid, illegally, wrongfully, and without legal authority, caused plaintiff to be imprisoned in the dwelling-house of said Hailey, and also in the common jail of Montgomery County, whereby he was deprived of his liberty for a long time.
"3. That while under arrest as aforesaid, and during said imprisonment, the plaintiff suffered great pain in body and mind, and was exposed and injured in his credit and circumstances, and prevented from carrying on his business, and incurred expense in obtaining (358) his liberation from said imprisonment, to his damage two thousand dollars.
"Wherefore, plaintiff demands judgment," etc.
The defendants filed an answer to the complaint, but on call of the case for trial, demurred ore tenus to the complaint, for that it appeared upon the face of the complaint that defendants were acting under color of process, and that there were no averments of malice nor of want of probable cause, nor that the said cause in which the process was issued has been terminated.
Whereupon, it was considered by the court that the demurrer be sustained and the action dismissed.
Judgment against plaintiff for costs, from which he appealed.
The cases of Garrett v. Trotter,
The court must be able to see a sufficient cause of action alleged in the complaint; it may be imperfectly and, therefore, demurrable — to be demurred to — or admitted in the answer or denied therein and proven on the trial; else the defendant may move to dismiss the action upon the ground that no cause of action is alleged.
The plaintiff alleges that he was arrested by one of the defendants, under color of process sued out by another defendant, before a (359) justice of the peace, also a defendant, and taken before him and another justice of the peace, also a defendant, and that while so arrested he suffered and sustained damages. By color of process is meant process sufficient in form and apparently valid. So, accepting the allegation in this respect, the plaintiff alleges no cause of action; he was lawfully under arrest until in some proper way discharged, and the allegations that he was "illegally, wrongfully, and without legal authority" imprisoned, have no force, because he was arrested; and, taking the allegations altogether, he was imprisoned under color of process. The complaint does not purport to allege but a single cause of action, and the allegation of imprisonment is intended as matter of aggravation. What the character of the process was does not appear, but the inference is that it was apparently sufficient; and, whether civil or criminal, it must be taken that upon its face it warranted the detention of the plaintiff in the jail. It may have been a warrant of arrest in a civil action, or a state warrant in a criminal action; in either case the plaintiff may have been, apparently was, lawfully so detained until discharged according to law.
It was contended on the argument that the court can see that a cause of action for trespass against the person is alleged. This is a misapprehension as to what the court may do in such a case. No such distinct cause of action is formally alleged; but one cause of action purports to be alleged; and the court sees all the allegations of fact, taken together confusedly, and determines whether a cause of action is formally alleged. Thus, taking the allegations all together, a cause of action for such trespass is not alleged, because the arrest and imprisonment complained of were by color of process.
The plaintiff does not allege that the process was void, or that (360) it was groundless, or that it was issued without probable cause, or that it was prompted by malice, or that it was ended. The substance of these things he should have alleged if he intended to allege a cause of action for malicious prosecution, as it seems he intended to do.
Affirmed.
Cited: Ely v. Davis,
