Mayberry v. Kelly, 1 Kan. 116

Mayberry v. Kelly

1 Kan. 116 | Kan. | 1862

By the Court

Kingman, J.

This is an action for damages for false imprisonment, tried at the September term, 1860, of *122the District Court sitting in Breckinridge county, where it jiad been taken, by change of venue, from Madison county.

Two points are presented by the petition in error.

The first is on the overruling of the demurrer to the petition.

The second, the refusal of the Court to give the instrrctions asked by the plaintiffs in error.

In the argument, it was claimed for plaintiffs in error that the same questions were raised by both causes of error, but as we have come to a different conclusion, they will be considered separately.

The petition contains the usual averments, from which it appears that in September, 1868, Allen D. Graham,Judge of the Probate Court of Madison county, issued his warrant directing the sheriff of that county to arrest Kelly 01 a charge of assault and battery with intent to kill. The w.rrant was issued on the affidavit of William H. Mayberry. Upon this warrant, Kelly was arrested and taken from hs dwelling house, in Breckinridge county, and placed in chaige of Pearson, deputy sheriff under Kirkendall, in Madison rounty, and was there detained seven days. After stating these faets, the petition avers that “ the said William H. Maymrry, Allen D. Graham, Elijah Kirkendall and Wesley Person caused the same to be done unlawfully, and then andshere imprisoned him and kept and detained him in prison .here without any reasonable or probable cause whatsoever,(because said Probate Court of Madison county had no juridiction of the subject matter,) for a long space of time, to wit: for the space of seven days,” &c.

Copies of the affidavit, warrant and sheiff’s return are made part of the petition as being all the priceedings of the Probate Court in the case.

A joint demurrer is filed by all the defenlants, setting up two causes:

*123First. The petition does not state that the alleged imprisonment and the wrongs and injuries said to have been done him at the same time and place, were done without authority of law, or unlawfully.

Second. The facts set forth in plaintiffs’ petition are not sufficient to constitute a cause of action.

A demurrer is a pleading, as now used, created by the Code, and can only be used when it appears on the face of the pleading demurred to, that one of the six causes exist designated by the ' Code. The first cause of demurrer set up, is not one provided for in the Code, and could, at most, only be regarded as objecting that the petition does not state facts' sufficient to constitute a cause of action, which is the same as the second cause of demurrer.

It is claimed that the defendants below were justified in ^their acts, by process duly and lawfully issued from the Probate Court, and that this appears from the petition and the papers filed, as part of it. The only papers filed as part of the petition, are the affidavit, warrant and sheriff’s return, and these are declared to be all the papers in the case. There is no examination of the accused — no order postponing the examination of the cause, and no showing that Kelly was remanded to the custody of the sheriff when brought before the Probate Judge. Nothing showing for what cause he was detained seven days in prison, and then left to go without either discharge or commitment; and yet the defendant admits, by his demurrer, that all this is true. ' If properly pleaded, the warrant would have been a sufficient protection to Kirkendall and Pearson for the arrest of Kelly, provided the Probate Court had jurisdiction of the case, and the affidavit of May-berry fully authorized a magistrate to issue a warrant for the arrest of Kelly.

It is not necessary to inquire whether the Probate Court had jurisdiction, because if that were admitted, there is nothing in the petition showing that the continued imprisonment for seven days was lawful.

*124There are certain causes known to the law for postponing the examination of a person charged with a criminal offense, meantime keeping the accused in custody by mittimus, but when sued for false imprisonment, the defendants must show affirmatively, not only a justification for the arrest, but the causes for the continued imprisonment, otherwise the arrest being legal, a party might be imprisoned indefinitely, without examination, and have no remedy against those detaining him in custody. No cause for the continued imprisonment appears in the petition, and of this trespass all the plaintiffs in error are charged as being guilty.

When an inferior court has jurisdiction of the subject matter, but is bound to adopt certain forms in its proceedings, from which it deviates, to the injury of the party, he has his remedy by action against all those who participated in the injury. (1 Chitty Pl., 182.)

The demurrer was properly overruled.

The other error assigned, is in the refusal of the Court to give the following instructions to the jury:

“ The judges of a local or inferior court of a State or Territory, the ministerial officers of such Court, and those who act under them as deputies in the execution of the laws enacted by the Legislature of such State or Territory, are protected by the judicial policy of the law against any claim of damage which may accrue or result to individuals from the proper execution of the laws so enacted, and such protection subsists in favor of such judge and ministerial officers of the said Courts for all official acts done strictly in pursuance of the provisions of such enactments, prior to the declaration of a' competent judicial tribunal touching- the validity of such enactment.”

The record shows none of the evidence in the case, nor what instructions were given by the Court, so that we are not able to say that the instruction asked for had any relevancy to the testimony, and as the answer was a joint one of not *125guilty, we do not see what application, under the issue as formed, the instruction asked could have had to any testimony.

It is claimed by counsel for plaintiffs' in error, that the point raised by the instruction is that inferior courts, and ministerial officers have no right to judge of the constitutionality of a law passed by a Legislature. Such is undoubtedly th'e object of the instruction. But is this law?' If so, a court created to interpret the law must disregard the constitution in forming its opinions. The constitution is law — the fundamental law — and must as much be .taken into consideration by a justice of the peace as any other tribunal. Where two laws apparently conflict, it is the duty of all courts to construe them. If the conflict is irreconcilable, they must decide which is to prevail, and the constitution is not an exception to this rule of construction. If a law were passed in open flagrant violation of the constitution, should a justice of the peace regard the law and pay no attention to the constitutional provision ? If that is his duty in a plain case, is it less so when the construction becomes more difficult ? If an inferior court was incapable, in law, of passing upon the constitutionality of the organic law, as well as legislative enactments, there would be no way to reach many such cases by superior courts.

Such, enactments may protect ministerial officers. Their protection is the process they have, but the courts have none but the law. It seems to the Court that part of the instructions asked were good law, and part bad.; but it appears toN have been asked as an entirety, and though it might be better to give so much of it as would be unobjectionable, the Court is not bound to do so, but may simply refuse the instructions prayed. (Walker vs. Devlin's Lessees, 2 Ohio S. R. 593.)

The judgment below is affirmed, and a mandate will be sent to the Court below, directing that the judgment be carried into effect. Judgment is given here for costs against the plaintiffs in error, and execution awarded.