100 Ky. 529 | Ky. Ct. App. | 1897
delivered the opinion of the court:
Appellant’s cause of action, as stated in his petition, is that appellees, A. L. Morgan, pretending to be and acting as police judge, John G. White and others, pretending to be and acting as trustees, and Joseph I-Iacker, pretending to be and acting as marshal of the town of Manchester, when in fact neither of them was such officer, concerted and agreed with each other to do so, and did unlawfully, willfully, without right and maliciously cause appellant to be arrested and brought by said Hacker before said Morgan, who was pretending unlawfully to act as a court, and who unlawfully, wrongfully, maliciously and without right or authority caused him by his order to be taken by Hacker and put in jail, where he was confined four days.
If it was intention of appellant to sue for malicious prosecution his petition is defective, because there is no statement contained therein that the charge upon which he was arrested, if upon any, was false or unfounded, or that the arrest was even without probable cause.
If he intended to sue for false imprisonment there was something necessary to be stated besides the general allegation that arrest and order of imprisonment were made unlawfully, maliciously and without right. After admitting, as appellant in his petition does do, that Hacker and Morgan were respectively marshal and police judge de facto, it was necessary for him, in order to make it appear they acted unlawfully, to further allege they were neither duly elected and qualified as such officers, and were, therefore, without legal right, and as usurpers holding and exercising functions of the two offices. As the petition does not contain a statement of facts sufficient to constitute a cause of action, the general demurrer was properly sustained.
Judgment affirmed.
