92 Ark. 128 | Ark. | 1909
(after stating the facts). The court erred in instructing the jury to return a verdict in favor of appellee and in the instruction given. The court also erred in refusing appellant’s prayers for instructions. This court in Trammell v. Russellville, 34 Ark. 106, said: “It is established doctrine that process, fair on its face, will protect from liability the officer executing it. It is not meant that 'it shall in all respects be regular; but that it shall appear to have been lawfully issued, and such as the officer might lawfully serve. That process may be said to be fair on its face which proceeds from a court or magistrate or body having authority by law to issue process of that nature, and which is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it. That the marshal and his deputy were protected from liability by the warrants, we think, is clear.”
Judge Caldwell, speaking for the Circuit Court’ of Appeals in Carman v. Emerson, 71 Fed. 264, announced the following:
“The writ was in due form, and served within the territorial jurisdiction of the court in a lawful manner by an officer authorized by law to serve it. The rule has long been settled that no imprisonment by virtue of a legal writ in due form, issued by a court of competent jurisdiction, and served in a lawful manner, is false imprisonment. It matters not that upon a presentation of all the facts it appears that the writ was improvidently or wrongfully issued. The existence of such facts does not make the writ void or illegal or impair its efficacy as a complete defense to an action for false imprisoment brought against the officer serving it or the party who procured it to be issued and instigated its service. In such cases, if the party procuring the issuance of the writ acts maliciously and without probable cause, he may be liable to an action for malicious prosecution, but he is not liable to an action for false imprisonment.”
It follows that upon the undisputed fact of this record the appellant is not liable for false imprisonment. The court erred in so holding, and for the errors indicated the judgment must be reversed, and the cause is dismissed. .
