Crane v. Stone

15 Kan. 94 | Kan. | 1875

The opinion of the court was delivered by

Valentine, J.:

This was an action against J. E. Stone, sheriff of Montgomery county, for voluntarily permitting the escape of a party held by him on mesne process in a civil action. The defendant demurred to the plaintiffs’ petition on the ground that it did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer, and the plaintiffs now bring the case to this court. We are at a loss to know why it is supposed that the petition below is insufficient; and the defendant has taken no trouble to inform us, either by brief, or oral argument. The petition seems to state a good cause of action at common law, or at least we have discovered no good reason why it does not do so. We have given the subject however but very little critical examination, as we do not consider it to be our duty to assist either party by laboriously hunting for weak places in the other party’s case. The petition however does not seem to state a good cause of action against the sheriff, as bail, under §§164 and 165 of the code. (Gen. Stat. 659.) This is probably the reason why it is supposed that the petition does not state any cause of action against the sheriff. We think however that the only other facts needed, in addition to those already stated, to make the petition a good petition under the code, as well as at common law, are the following: The petition does not allege that the original case in which the party escaping was arrested was ever prosecuted to final judgment, or that such party had failed to “render himself amenable to the process of the court” on such judgment, (Code, §159,) or that an execution issued on such judgment against the body of such party had ever been returned “not found.” (Code, §165.) Now as the petition in this case states a good cause of action at common law, and not a good cause of action under the code, the only question involved in the case is, whether the common-law action in any form still survives. We think it does. While it has no doubt been modified to some extent by our laws and institutions, yet we do not think that it has been wholly abolished. (Smith v. Knapp, 30 N. Y. 581.) According to the weight of authority we think the damages recoverable in the two actions are different. In the common-law action, as it now exists, only the actual damages sustained can be recovered; while in the action given by the code the plaintiff may recover as damages the amount of the judgment rendered in the original case, with interest and costs. (Code, §165.) The common-law action, as it now exists, is analogous to the old common-law action on the case for an escape. The action under the code for an escape, is analogous to the old action of debt under the English statutes for an escape.

With these views it follows that the judgment of the court below must be reversed. The cause will therefore be remanded to the court below with the order that the demurrer to the petition be overruled, and for further proceedings. Judgment reversed.

All the Justices concurring.