McClenny v. Inverarity

80 Kan. 569 | Kan. | 1909

'The opinion of the court was delivered by

Benson, J.:

The evidence disclosed the fact that a warrant for the arrest of the plaintiff upon a criminal «harge was used to collect a debt, and, it seems, to extort an additional amount. The justification suggested is that the prosécution was begun by advice of the county-attorney, and that the warrant was good upon its face. Whatever the original motive may have been, the subsequent conduct of the defendants reveals an abuse of the process. The prompt suggestion of the constable, after first impressing the plaintiff with the gravity of the supposed offense, that “there is a way out,” was such a publication of the motive to extort money as to. warrant the inference that this was the real purpose of the proceeding — a purpose condemned alike by the law and good morals. A display of force was used to intiihidate, not to enforce obedience to the arrest, for no. opposition had appeared. The participation of the complaining witness in this wrongful conduct might have been inferred by the jury from the circumstances, proved. The justice’s authority appears to have been used only so far as was necessary to accomplish this, end. After the money had been received that authority was ignored, and the writ was not returned nor the. costs taxed. The rights of the alleged criminal, as well as of the public, were disregarded. Supposed mileage to the amount of $70, and some other costs, so-called, were paid to the constable by Inverarity, and thus the $250, less the $5 paid to the justice, was divided between the defendants.

The fact that the plaintiff consulted a lawyer while-the constable was waiting for a train after receiving-the check, and did not take steps to stop its payment, can not bar his right to recover. It does not follow that: the plaintiff should not recover had payment been suspended. The $250 may be an item of damages, but not: necessarily the only one. The man was publicly held in custody, threats made, a display of force indulged in, and intimidating methods used. There is no arbitrary-rule of law restricting the recovery to the sum wrongfully obtained. Again, the plaintiff had no power to-stop the payment of the check. It was drawn by a. third person on his own account. It is true the drawer might have observed the plaintiff’s request, if it had been made, to stop payment, but it is probable that the same fear that prompted the plaintiff to cause its delivery was sufficient to prevent him from asking that payment be stopped. He may have been well or ill -advised; but the defendants can have no advantage because he did not do all that he might have done to prevent the full consummation of their ulterior designs.

It is argued that the defendants are protected because the process was valid upon its face. An officer is protected by valid process only when he uses it for a legitimate purpose in executing its mandate, but it is not a protection for extortion or other abuses. (1 Cooley, Torts, 3d ed., 354.)

“Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, ■though with a bad intention, is not a malicious abuse of process.” (1 Cooley, Torts, 3d ed., 355.)

(See, also, Bonney v. King, 201 Ill. 47; Addison, Torts, 8th ed., 31; Slomer v. The People, 25 Ill. 70; Wood v. Graves, 144 Mass. 365; Mayer v. Walter, 64 Ra. St. 283.)

“Where an officer acting under process is guilty of such an improper and illegal exercise of authority under it as will warrant the conclusion that he intended from the first to use his legal authority as a cover for his illegal conduct, he becomes a trespasser ab initio, and is liable the same as if he had acted without proc■ess.” (Wurmser v. Stone, 1 Kan. App. 131, 135.)

The principle is stated thus in The State v. Hinehman, 74 Kan. 419:

“If the process were technically legal but the constables were not acting in good faith under it — were actually abusing it — they were trespassers. . . . If he did not go there in good faith, but went there to assist.in the abuse of legal process, he was a trespasser. If he acted in-good faith he was accorded the same rights as any person rightfully stationed and wrongfully assailed.” (Page 422.)

The evidence shows that the warrant was used to extort money and not to bring the alleged offender before the magistrate — to break the law and not to enforce it, and the evidence tended to show that this was the purpose for which the warrant was obtained. That it was regular upon its face is no protection against the consequences of such wrongful conduct.

The demurrer to the evidence should have been overruled. The judgment is therefore reversed, and the cause remanded for further proceedings.