Bonebrake v. Hunt

89 P. 544 | Ariz. | 1907

NAVE, J.

— R. S. Hunt, one of the appellees, was during all of the time mentioned in the complaint in this case sheriff of Cochise county. The National Surety Company, the other appellee, is surety upon Hunt’s official bond as such sheriff. One Davis was Hunt’s deputy. The appellant seeks in this action to recover damages from the sheriff and the surety upon his official bond by reason of an arrest of appellant by Deputy Sheriff Davis. A general demurrer to the complaint, was sustained. Plaintiff having declined to amend, judgment was rendered, and plaintiff has appealed.

. The argument of appellant is directed exclusively to establish that the sheriff and the sureties upon his official bond are liable in damages for a false imprisonment made .under color of his office by the sheriff’s deputy. An examination of the complaint discloses that it is unnecessary to consider this interesting question. It is not averred that the deputy unlawfully arrested the plaintiff. It is charged “that said arrest and imprisonment was unlawful, as plaintiff at the time of said arrest and imprisonment was duly sober, and was neither committing, nor attempting to commit, any crime or public offense; that said arrest was made in the night-time; that no felony had been committed by plaintiff; that no charge had been made, or was made, either by said, deputy sheriff, or to him by any person, that said plaintiff had committed a felony, nor was there any cause to believe that this plaintiff had committed a felony or any public offense.” Plaintiff has negatived certain conditions which characterize lawful arrests. The matters he has enumerated have to do with the authority of peace officers to make arrests without warrant. But it is nowhere alleged that this arrest was made without warrant, nor even in general terms that it was unlawful. Every allegation in the complaint may be true, yet the plaintiff may lawfully have been arrested by the deputy pursuant to a warrant. By reason of these facts it does not appear from the complaint that the deputy sheriff committed a breach of duty. Wherefore unquestionably there is not charged a breach of the conditions of the sheriff’s' official bond.

The judgment of the district court is affirmed.

KENT, C. J., and SLOAN and CAMPBELL, JJ., concur.