58 F.2d 573 | 8th Cir. | 1932
This is an action on a sheriff’s bond for personal injury received in connection with an attempt by the sheriff to arrest appellant in the mistaken belief that he had committed a felony. This arrest was without warrant, and the action of the sheriff was based upon information which he had received from the sheriff of an adjoining county. The sheriff and the surety filed separate demurrers to this petition as not stating a cause of action. The demurrer as to the sheriff was overruled and as to the surety was sustained. Prom a judgment of dismissal as to the surety, plaintiff declining to plead further, this appeal is brought.
The questions presented on this appeal may be stated thus: Where a sheriff in Nebraska assumes to make an arrest for a felony without a warrant or without having viewed the crime, is it necessary to allege that he acted upon reasonable belief that the plaintiff had committed the crime in question in a petition for damages against the sureties on his official bond, and if so, does this petition contain such allegations?
There is considerable confusion of learning in the decisions concerning this matter. This is revealed in the digests (35 Cyc. p. 1903 X, C, 6; p. 1917 X, D and p. 1943 X, JJ
In so far as arrests by the sheriff are concerned, the law of Nebraska makes it the duty of a sheriff to arrest for a felony upon a warrant or upon view of the commission of the felony or in an honest belief, based upon reasonable grounds, that the person arrested has been guilty of a felony. If the sheriff attempts an arrest where any of the above three situations exists, he is acting with authority and within his official status, and, therefore, his official bond is responsible for such action. The decisions which announce this doctrine are Huffman v. Koppelkom, 8 Neb. 344,1 N. W. 243 (same case on a later appeal, sub nom, Kopplekom v. Huffman, 12 Neb. 95,10 N. W. 577); Kendall v. Aleshire, 28 Neb. 707, 45 N. W. 167, 26 Am. St. Rep. 367; Diers v. Mallon, 46 Neb. 121, 64 N. W. 722, 50 Am. St. Rep. 598, and see Nelson v. State, 33 Neb. 528, 50 N. W. 679 and Halsey v. Phillips, 104 Neb. 648, 178 N. W. 218 (which were not actions upon bonds, but which defined the duties of arresting officers), and Nelson v. State, 33 Neb. 528, 50 N. W. 679 (a watchman).
Prom the above statements and citations, it is clear that it was necessary, to bind the surety, to allege facts in this petition to the effect that this sheriff honestly acted upon a reasonable belief that the persons injured ■by him in the attempted arrest had committed a felony.
The remaining inquiry is whether such allegations are present in this petition. This action was brought against the appellee and the sheriff, Carl Ryder. Acting with Ryder at the time of the shooting complained of was his deputy, Howard McCallum. The pertinent allegation^ of the petition are as follows: “That said defendant and said McCallum .at the time of the shooting by them of the plaintiff as aforesaid were in search for and attempting to arrest a felon who had committed the crime of stealing an automobile in Auburn, Nemaha County, Nebraska, and who was then in possession of said stolen automobile and who was attempting to transport the same to the State of Iowa and to escape with the same by way of State Highway No. 75 proceeding northward from Auburn, Nebraska, to Nebraska City, Nebraska. That plaintiff is unable to state whether said defendant or McCallum at said time possessed a warrant for arrest. That earlier in the day and only a short .time before said shooting of plaintiff an automobile had been stolen in the City of Auburn, Nebraska, and shortly prior to the shooting of said plaintiff the then sheriff of Nemaha County, Nebraska, and the police officers of Auburn, Nebraska, all being responsible persons whose duty it was to notify the defendant Ryder and said MeCallum of the commission of said crime, and who were fully entitled to solicit the aid of said defendant and said McCallum by telephone, informed and notified said de
We think these quoted allegations are a statement that the sheriff acted in an honest belief, based upon reasonable grounds, that the persons he was endeavoring to arrest were guilty of a felony. In this situation it was his duty to make the arrest. In so doing he was acting by virtue of his office, and his surety is liable for such action. Under this construction and the quoted allegations of the petition, the only issue tendered as to liability is excess of force used in making the arrest. That is dependent upon all the circumstances and must be judged from the reasonable appearance of the situation to the sheriff at that time.
The judgment is reversed, and the case remanded for a new trial.