Butler v. Tattnall Bank

140 Ga. 579 | Ga. | 1913

Hill, J.

(After stating, the foregoing facts.) Section 4447 of the Civil Code .provides as follows: “False imprisonment consists in the unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty.” Section 4448 provides: “If the imprisonment is by virtue of a warrant, neither the party bona fide suing out nor the officer who in good faith executes the same is guilty of false imprisonment, though the warrant be defective in form, or be void for want of jurisdiction. In such cases the good faith must be determined from the circumstances of each case. The same is true of the judicial officer issuing the warrant, the presumption being always against him, as to good faith, when he has no jurisdiction.” The process issued by the clerk of the superior court of Bryan county, under which the plaintiff was arrested and placed in jail, was in the nature of a warrant. Williams v. Sewell, 121 Ga. 655 (6) (49 S. E. 732); Berger v. Saul, 113 Ga. 869, 871 (39 S. E. 326); Page v. Citizens Banking Co., 111 Ga. 73, 86 (36 S. E. 418, 51 L. R. A. 463, 78 Am. St. R. 144). In the Page case the court said: “Even in a case where the warrant is defective or void, the imprisonment thereunder would not give rise to an action for false imprisonment, if the party suing out the warrant acted in good faith, and the officer executing the same acted in like manner.” Whether the order of December 16, 1910, was granted by Judge Seabrook in term time or in vacation does not clearly appear, and whether or not the judge can pass an order absolute at chambers is not a question now before us for decision. Assuming that the order was passed at a time when the judge had jurisdiction to do so, and construing the order of December 16, 1910, in the light, of the recitals, of fact preceding it, we hold that the order of Judge Seabrook directing the clerk óf the superior court to issue an attachmept was <an order absolute, and the clerk was authorized -and required by its terms to issue the attachment absolute under which the plaintiff was arrested. So construing the order, we think the reference dn it to section 4774 of the Code of 1895 (Civil Code of 1910, ■§ 5346) was wholly inapplicable, and its miscitation is therefore to be construed as an inadvertence on the part of. the judge.

The order being held to be an order absolute, and it directing the clerk “to issue instanter an attachment for contempt of court,” etc., the clerk was within his duty in issuing the attachment absolute under which the plaintiff was'arrested. And this being so, he- would not be subject to ,a suit for damages brought against him for issuing the attachment absolute. Nor would the sheriff who arrested the plaintiff under this attachment, nor the bank which directed the arrest to be made, be liable in damages if they acted in good faith in so doing, believing the order to be a valid one. The ground of Judge Charlton’s decision in the habeas-corpus case, by which the plaintiff'wás released from jail, does not appear; but whatever the basis of that'decision, neither of the defendants vas a party to that case, and they are not bound by the judgment therein rendered. It is not alleged in the petition in the present case that the sheriff who made the arrest, or the bank which ordered it, acted in bad faith, and there are no facts set out in the record tending to show that they, or either of them, 'acted otherwise than in good faith; and this being true, the petition did not set forth a good cause of action. Civil Code, § 4448. It follows from what has been said that the court did not err in sustaining the demurrer and dismissing the case.

Judgment affirmed.

All the Justices concur.