22 Or. 164 | Or. | 1892
This is an action for false imprisonment, brought here by plaintiff on appeal from a nonsuit entered against him in the court below. The record is in confusion, but from the bill of exceptions, interpreted in the light of the briefs and arguments of counsel, the facts appear to be that on August 22, 1891, defendants Conrad and Schafer commenced an action in a justice’s court against plaintiff, on an account; and at the same time filed an affidavit and undertaking in due form for the arrest of plaintiff as an absconding debtor. A warrant of arrest was issued by the justice of the peace and placed 'n the hands of a deputy sheriff for service. The plaintiff was arrested and taken to the office of defendants’ attorney, where arrangements were made for bail, and the attorney prepared a bail bond and gave it to the officer to be executed by the sureties. The undertaking was afterward signed by two sureties, and although not executed in the manner pro
From this statement it appears that the court issuing the process under which plaintiff was arrested, had jurisdiction of the action and of the parties. The affidavit for the warrant set forth the necessary facts to authorize it to be issued. The proper undertaking was given, and there was a full compliance, so far as this record shows, with all the requirements of the law to justify the issuing of the process. The arrest was therefore under lawful process, and so long as it remained in force, was a complete justification to the defendants. The issuing of the second warrant was at most only an irregularity, and, until set aside, no action will lie for false imprisonment by reason of the arrest thereunder. A void process is no justification for an arrest, but an irregular and voidable one is a complete defense until set aside. “Before an action for false imprisonment under process of court can be maintained,” says Mr. Bigelow, “it is necessary that the writ should be set aside, unless it appear to be absolutely void; for if the process is merely voidable, it is valid until quashed; and hence the arrest must, till then, be legal.” (Bigelow, Torts, 131; Day v. Bach, 87 N. Y. 56; Bigelow, Leading Cases on Torts, 280.)
In this case no application was ever made .to have the process set aside, but plaintiff appeared and put in bail. Having done this, and by neglecting to move for a discharge, he consented to the process and waived all
It is argued that if the arrest were made on Sunday, it was illegal, and the warrant or process is no defense or justification. Conceding this to be true, it does not appear that the arrest was made by the direction or with the knowledge of the defendants. The trespass, if any, was therefore committed by the officer, and not by the defendants. The defendants were not responsible for the manner in which the officer executed the process, unless he was acting by their direction at the time. They had sued out and caused to be delivered to him a valid process, and were only responsible for the validity of the process and for good faith in suing it out. “ There is no law or justice,” says the court, in Adams v. Freeman, 9 Johns. 118, “that a party who sues out and delivers to the sheriff a valid process should be responsible for the irregularity of the sheriff in executing the process, unless it appear affirmatively that the sheriff acted under his orders when he committed the trespass. The party who sues out process from a competent court is responsible only for the validity of the process and for good faith in suing it out. He is not to answer for the acts of the officer beyond the authority of the precept, unless he make those acts his own.” (Roth v. Smith, 41 Ill. 314; Ocean S. S. Co. v. Williams, 69 Ga. 251.) It also appears that v. lien plaintiff was arrested by the constable, he was taken to the apartments of defendant’s attorney, who being asleep at the time, was aroused, when plaintiff asked to be allowed to give bail, but the attorney said it was too late, and directed the constable to put him in jail. From this fact it is urged
The judgment is therefore affirmed.