100 Kan. 279 | Kan. | 1917
The opinion of the court was delivered by
The action was one for damages for false imprisonment. The plaintiff recovered and the defendants appeal.
The plaintiff resided in Kansas City, Mo., and at the inception of the proceedings resulting in his imprisonment was visiting his father, Charles Haglund, who resided at Burdick, a city in Morris county, twenty-six miles distant from Council Grove, the county seat. The Burdick State Bank was located at Burdick. E. T. Anderson was its cashier. Edwin Anderson was the cashier’s brother, and an attorney at Council Grove. The bank held an unsatisfied judgment rendered on a promissory note given by the plaintiff, and instituted pro
“Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the judge may, upon proof to his satisfaction, by affidavit of the party or otherwise, that there is danger of the debtor leaving the state, or concealing himself, to avoid the examination herein mentioned, issue a warrant requiring .the sheriff to arrest him and bring him before such judge, within the county in which the debtor may be arrested. Such a warrant can be issued only by a probate judge or the judge of the district court of the county in which such debtor resides or may be arrested. Upon being brought before the judge, he shall be examined on oath, and other witnesses may be examined on either side; and if on such examination it appears that there is danger of the debtor leaving the state, and that he has property which he unjustly refuses to apply to such judgment, he may be ordered to enter into an undertaking, in such sum as the judge may prescribe, with one or more sureties, that he will, from time to time, attend for examination before the judge or referee, as shall be directed. In default of entering into such undertaking, he may be committed to the jail of the county, by warrant of the judge, as for a contempt.”
The warrant was issued at about five o’clock- in the afternoon of June 15, 1914, and the plaintiff was arrested at his father’s house in Burdick at about seven o’clock in the’ evening. The sheriff told the plaintiff he could pay $600 or go to Council Grove. The plaintiff said he would go to Council Grove. When the plaintiff and the sheriff reached the sheriff’s automobile standing in the street the cashier of the bank was there. The plaintiff’s father was a depositor having funds in the bank to the amount of $600. The cashier made a talk to the plaintiff about the disgrace of being taken to Council Grove and put in jail, and asked if it would not be better to pay the note, or have his father pay it. The plaintiff owned nothing at the time except some lots in Illinois which he had traded for. They cost him $1500 and were assessed at $1200. His papers were in the house and he went for them. When he produced them the cashier observed that the plaintiff’s name was not in the deed and the deed had not been recorded... The cashier urged the plaintiff to pay, and urged the plaintiff’s father to pay, to save all the trouble of having to go to Council Grove. The plaintiff’s
“He told me V-ic was in jail, and it would be the best thing if you go over to the bank and would write out a note and then they will let him out. And another thing he says, ‘He ain’t got no folks in there and nobody knows him there,’ he says; ‘I don’t like to sign any note,’ says I, ‘because he says last night that he didn’t want to ask me to do it.’ ‘Well, you had better come over to the bank and you sign a note and then I will telephone to Council Grove and he will get out and be free,’ ”
The bank collected from the plaintiff’s father the sum of $600, which the jury found to be $124.10 more than the debt,, with interest to the time of satisfaction. The plaintiff settled
The jury were instructed that, notwithstanding the fact the sheriff arrived in Council Grove with the plaintiff in the nighttime, when the probate judge would not be at his office, the sheriff had no right to lock the plaintiff in jail and keep him there until the next day. The defendants say the instruction was wrong, and was prejudicial. In view of other instructions given it is not entirely clear that the instruction complained of would have been prejudicial if erroneous, but it was not erroneous. Imprisonment under civil process still occupies a restricted field in the jurisprudence of this state, but none of the restrictions will be removed and the field enlarged by judicial interpretation. In the case of Hynes v. Jungren, 8 Kan. 391, the action was one for false imprisonment. In a civil action for debt, Hynes procured the arrest of Jungren on process issued to a constable by a justice of the peace. The syllabus reads:
“Where an order of arrest commands the officer to arrest the debtor and take him forthwith before the justice, the officer is not justified in arresting and confining him in jail.” (¶ 2.)
In the opinion it was said:
“The judge charged the jury that the original process in the hands of the constable justified him in making the arrest and obeying its commands.. This, to say the least, was as favorable to plaintiffs as the facts would' permit. . . . The order of arrest commanded the constable to arrest Jungren and bring him forthwith before the justice. Instead of so doing he, in conjunction with Hynes, carried him to the county jail and kept him there for a part of a day before taking him to the justice. The excuse which they attempted to make on the trial in the district court was, that Jungren was intoxicated. In reference to this the learned judge charged the jury as follows: ‘This if true would be no justification to disobey the command of the writ and incarcerate the plaintiff in jail, and keep him there excluded from counsel and friends.’ This we think is correct. It was the duty of the constable to take his prisoner forthwith before the justice; and if the latter found him to be in Such a condition as not to be able to protect his rights in court, he' could make such order for his safe keeping, and for a postponement of the case, as should be right and proper.” (p. 395.)
In the present case the warrant required the sheriff to arrest the plaintiff and bring him before the probate judge. The
The defendants cite the case of Grab v. Lucas, 156 Wis. 504, in which it was said:
“Officers having persons under arrest in their custody may lawfully place them for safe-keeping in any proper and suitable place such as a city or county jail, otherwise they could not be safely kept. While the primary function of a jail is a place of detention for persons committed thereto under sentence of court, they are also the proper and usual places where persons under arrest or awaiting trial are kept till they appear in court and the charge against them is disposed of.” (p. 506.)
In that case the defendant had been arrested on civil process, had been taken before the justice of the peace issuing the process, and had been committed to the custody of the constable for failure to give the bond required of him. The defendant was' in default for failure to comply with an order of court, and safe-keeping was the purpose of his detention.
In this casé the plaintiff occupied the legal status of the defendant in the case of Hynes v. Jungren, who was put in j ail while on the way to the court which had required his presence. The defendants ask, What was the sheriff to do ? The answer is, do what the warrant directed, and if -delayed in reaching or finding the probate judge, do as the sheriff would have done if unable to get to Council Grove at all the night of
The court instructed the jury that if the defendants did not direct the sheriff to imprison the plaintiff, or to keep him in prison after he was there, the sheriff alone, who was not sued, would be liable for the illegal detention. This instruction is complained of. It was given for the benefit of the defendants, who gave testimony sufficient to relieve them from liability if the testimony were believed and the instruction were followed.
The verdict was for $1635.26 — $1500 plus $135.26, the amount with interest which the bank collected above the amount of its debt. The jury returned the following special findings:
“1. What was the amount of the judgment and costs upon which the proceedings set out in the plaintiff’s petition were had? Answer: $475.90.
.“2. What was the sum paid to the bank by Charles Haglund, for his son Victor? Answer: $600.00.
“3. If the payment referred to in the last question exceeded the amount due on the judgment in question, how much was the excess? Answer: $124.10.
“Apply on No. 3, $11.16 interest, excess $124.10, total $135.26.”
It is said there was no evidence to sustain the first and second findings, and that as a consequence the verdict should be set aside and a new trial granted. There is no ground whatever for the challenge to the second finding. The proof' was abundant and clear, and in fact there was no dispute about the matter. Documentary evidence furnished data for the computation, the result of which was stated in the first finding, and the question really called for nothing but the result of a mathematical calculation. As a matter of fact, the
The judgment of the district court is affirmed.