29 S.W.2d 17 | Ky. Ct. App. | 1930
Affirming.
Greene Hogg instituted an action against a magistrate, constable, deputy constable, and the corporate surety on the constable's official bond, to recover damages for an alleged false arrest and imprisonment. He charged that the deputy constable falsely and maliciously and without any probable cause, but under color of his office, accused the plaintiff with having committed a breach of the peace in the presence of the officer, arrested him therefor, and put him in jail under an order of commitment signed in blank by the magistrate. He alleged *753 also that the deputy constable refused to take the prisoner before any magistrate or judicial officer, or to permit him to furnish bond, but instead falsely filled out the blank order of commitment theretofore signed by the magistrate, and upon the authority of that alleged process left plaintiff for several hours in the custody of the jailer. A demurrer to the petition submitted on behalf of the defendants other than the deputy constable was sustained. The plaintiff declined to plead further, the action was dismissed as to the magistrate, constable, and surety company, and from the order of dismissal the present appeal is prosecuted. The case was retained on the docket for trial as to the deputy constable, who had interposed a defense consisting of a denial of the charges.
It is plain that the ruling of the circuit court was correct in so fat as the magistrate was concerned. There is no charge of any official or other misconduct on his part. The allegation is that the deputy constable was in possession of a blank order of commitment duly signed by the magistrate, but there is no allegation that the magistrate participated in any way in the wrongful conduct of the deputy constable, or had any knowledge thereof. It is not explained how the order of commitment happened to be signed in blank, or how it came into the custody of the deputy constable. The law raises a presumption, in the absence of an averment of facts tending to show the contrary, that the magistrate acted lawfully and consistently with his official obligations. Connelly v. American Bonding Trust Co.,
The liability of the constable and his surety depend upon whether the wrongful conduct of the deputy constable was an official act within the scope of his authority. Lewis v. Treadway,
It is argued that the petition in the present action may be construed as charging inferentially that the arrest was legal, because of the absence of allegations to the effect that no offense was committed in the presence of the officer, and that he had no reasonable grounds for belief that a felony had been committed. Proceeding from the postulate that the arrest was legal, it is insisted that the constable and his surety are liable for the acts of the deputy in failing to take the prisoner before the nearest magistrate as required by section 46 of the Criminal Code of Practice. If an arrest be made without a warrant, but lawfully under the authority of section 36 of the Criminal Code of Practice, it is necessary, unless it is practically impossible or the right is waived (Klotz v. Cook,
An allegation that an officer acted under color of his official character is not sufficient when contradicted by specific allegations that plaintiff had committed no offense, and the officer had no reasonable basis for a belief that he had done so (Jones v. Van Bever, supra; Fidelity Deposit Co. v. Hall, supra), but the charge that acts were done wrongfully, maliciously, and without probable cause is not merely a legal conclusion. In actions of malicious prosecution the gist of the action is the abuse of the process of the court, and it is proper pleading to allege that the wrongful acts were done maliciously and without probable cause. Madden v. Meehan,
It is unnecessary, therefore, to determine whether the constable and his surety are liable for the acts of a deputy who violates section 46 of the Criminal Code of Practice respecting the disposition of a prisoner lawfully apprehended. The petition stated a good cause of action against the deputy constable, but failed to state the facts essential to constitute a cause of action against the other defendants.
The judgment is affirmed. *757