109 Mo. App. 614 | Mo. Ct. App. | 1904
Lead Opinion
The plaintiff’s action is for false imprisonment and she prevailed in the trial court.
It is provided by article 12, chapter 16, Eevised Statutes 1899, that proceedings in misdemeanors may be instituted before justices of the peace, if by private person, on his complaint and the information of the’ prosecuting attorney. By the terms of section 2749 of that article any person having actual knowledge that an offense has been committed may make a complaint, verified by his oath, setting forth the offense and file the same with the prosecuting attorney, or a justice of the peace.' And it is enacted by section 2750 of such statue that if the private person, himself, files the complaint with the justice, the accused shall not be put upon trial or required to answer the charge until ' the prosecuting attorney files his information based on such complaint; provided, however, “that complaints subscribed and sworn to by any person competent to testify against the accused may be filed with any justice of the peace, and if the justice be satisfied that the accused is about to escape, or has no known place of permanent residence or property in the county likely to restrain him from leaving for the offense charged, he shall immediately issue his warrant and have the accused arrested and held until the prosecuting attorney shall have time to file an information.”
The first part of the section would bear the construction that the accused might in any case be arrested after complaint is made and before the prosecutor acts. But the whole considered, it means that a warrant shall not issue, nor the party be arrested, before the prosecutor files an information, unless the justice is satisfied that he is about to escape; or that he has no known or permanent place of residence or property in the
On these facts we have concluded that the defendant is not liable to the action for false imprisonment. A person making complaint to a justice of the peace is not necessarily answerable for whatever judicial action the justice may take. [Boeger v. Langenberg, 97 Mo. 390; Monson v. Rouse, 86 Mo. App. 97.] Where a person in good faith lays his complaint before a justice of the peace and calls upon him to act and the justice concludes to issue a warrant, the complainant can not be made answerable to the accused however mistakenly or erroneously the justice may have acted. [Brown v. Chapman, 60 E. C. L. 365; Williams v. Smith, 108 E. C. L. 596; West v. Smallwood, 3 M. & W. 418; Marks v. Townsend, 97 N. Y. 590; Swart v. Rickard, 148 N. Y. 264; Langford v. Railroad, 144 Mass. 431; Murphy v. Walters, 34 Mich. 180; Marks v. Sullivan, 9 Utah 12; Gifford v. Wiggins, 50 Minn. 401; Landt v. Hilts, 19 Barb. 283; Barker v. Stetson, 7 Gray 53.]
The defendant in this case properly charged against the plaintiff the commission of a misdemeanor and filed it with the justice. Whether the justice would issue a warrant before the prosecuting attorney filed an information was a matter which the statute left to his
In West v. Smallwood, supra, Lord Abingek said: “Where a magistrate has a general jurisdiction over the -subject-matter, and a party comes before him and prefers a complaint, upon which the magistrate makes a mistake in thinking it a case within his authority, and grants a warrant which is not justifiable in point of law, the party complaining is not liable as a trespasser, but the only remedy against him is by an action upon the case, as if he had acted maliciously.” Bolland, B. was of same opinion. He said: “In the case of an act act done by a magistrate, the complainant does no more than lay before a court of competent jurisdiction the grounds on which he seeks redress, and the magistrate, erroneously thinking that he has authority, grants a warrant,” in which case the complainant is not liable for false imprisonment. The case of Marks v. Townsend, supra, was where a party had been illegally arrested the second time for same offense contrary to a New York statute. The court held that though on application for the warrant, it had been disclosed to the justice that it was a second arrest, and he had erroneously decided that the complainant was nevertheless entitled to a warrant, yet an action for false imprisonment would not lie. “The remedy of the party unjustly arrested or imprisoned is by recovery of costs which may be awarded to him . . . or by an action for malicious • prosecution, in case the prosecution against him has been from unworthy motives and without probable cause.” And even in malicious prosecution if the complainant acts in good faith and states the facts to the officer, he is not responsible for the
Plaintiff argues that even though the justice had heen satisfied that the accused was about to escape, or had no known place of permanent residence or property in the county likely to restrain him from leaving, as is contemplated by section 2750, yet his docket or other record should show that fact. And that is true. In the orderly administration of justice those facts should appear of record so as to support the regularity of the proceedings against the accused; and so it was stated in McCaskey v. Garrett, 91 Mo. App. 354. But this is a collateral action, and it must find its support in some wrongful act of the party who sought the warrant. It can not be based upon an act or omission in the line of duty of the officer, which such party could in no wise control. It would be both unjust and against the trend of all the foregoing authorities, to hold a complainant responsible for an omission of;the justice pertaining to his own duty.
There is no conflict between the views herein expressed and the McCaskey case. That was a case which had been tried on the theory of malicious prosecution, whereas, as therein shown,- it was, if anything, a case for false imprisonment. There the complainant, according to the evidence, did not act in good faith, at least he did not state the facts to the justice. He represented that the prosecuting attorney sent word by him to the justice for the warrant to issue, whereas the prosecutor had not done so. The justice was, therefore, deceived and misled by the complainant into doing the unauthorized act. But in this case the defendant’s attorney in defendant’s presence stated the facts to the justice -in good faith, literally as they existed; and if the justice mistakenly supposed such facts authorized the issuance of the warrant, neither the complainant nor his attorney can be held for such error. [Authorities supra.]
Rehearing
OPINION ON KEHEAPING.
A rehearing was granted in this cause. Further consideration has shown that the judgment should be affirmed. We have concluded that liability attached to defendant by reason of his interference beyond merely putting the case before the justice. Defendant went with his attorney to the justice. The attorney testified that he, in defendant’s presence, “asked the justice to issue the warrant at once and give it to the constable who was present, for the reason that Mrs. Brueckner was in town and he (the constable) could save himself a trip eight miles in the country, and the justice issued the warrant at my request, and not at Mr. Frederick’s (defendant) and he had nothing to do with it.”
Under the authorities in this State and elsewhere, as shown in plaintiff’s brief, this was a sufficient affirmative taking part to place liability on the defendant. [Boeger v. Langenberg, 97 Mo. 396.]
It will be noticed that the attorney thus testifying states that he, and not the defendant, asked the justice to issue the warrant. But his request was made in defendant’s presence and it elicited no protest from him. In such circumstances the request of the attorney was the request of the defendant himself. [Guilleaume v. Rowe, 94 N. Y. 268; 2 Addison on Torts, 41.]
The judgment is affirmed.
