97 S.W. 118 | Tex. App. | 1906
Appellant Sneed brought this suit to recover of A. R. Anderson, sheriff of Harris County, Texas, and the sureties on his official bond, and of Frank McFatridge, as constable of Lamar County, Texas, damages for false imprisonment. All the appellees answered by general demurrer and general denial and A. R. Anderson and his sureties, Sweeney, Brashear and Dunn, in addition thereto, pleaded by special exceptions and in abatement their privilege to be sued in Harris County, where it was alleged they resided. The trial court sustained the general demurrer and special exceptions and appellant declining to amend, the suit was dismissed as to all the appellees and judgment to that effect and for costs entered against appellant, from which he has appealed.
The material allegations of appellant's petition are in substance; that on or about March 15, 1905, appellee, McFatridge, made and filed with A. B. Sims, a justice of the peace of Precinct No. 2, of Lamar County, Texas, a complaint or affidavit charging appellant with the offense of having bet at a game of dice in said precinct and county and not at a private residence; that on the same day the said justice of the peace issued a warrant for the arrest of appellant, directed to the sheriff, or any constable of Lamar County, Texas, which warrant appellee, McFatridge, sent to appellee, Anderson, together with a letter advising said Anderson where to find appellant, and directing and requesting that appellant be arrested and detained until McFatridge could go for him; that appellee Anderson and his deputies received said warrant and on or about May 22, 1905, said Anderson, acting through his deputy, D. W. Thompson, and in pursuance of the request of McFatridge, unlawfully arrested appellant in Harris County, Texas, and carried him in custody to the city of Houston, a distance of about twenty miles, and incarcerated him in the jail of said county. That appellant was restrained of his liberty and *595 confined in said jail until May 27, 1905, at which time said Anderson, through his deputy, turned appellant, together with said warrant, over to the said McFatridge in Houston, Harris County, Texas. That appellee, McFatridge, continued to restrain appellant of his liberty in said Harris County, and handcuffed him and brought him back to Lamar County in irons and was about to place and imprison him in the county jail at Paris when appellant prevailed upon him to telephone to appellant's friends and relatives at Petty, who made bond for his appearance to answer the charge preferred against him, whereupon he was discharged from custody. It was further alleged that appellee Anderson, through his deputies, in arresting and restraining appellant of his liberty, pretended to act under and by virtue of the warrant issued by the justice of the peace of Lamar County; that said warrant was not indorsed as required by law by any magistrate in Harris County, Texas, nor by any judge of this State so as to authorize its execution out of Lamar County, Texas, and was therefore void in Harris County, Texas. That after appellant's arrest in said Harris County appellee Anderson and his deputies failed and refused to carry appellant to the nearest justice of the peace or to any justice of the peace and failed and refused to give appellant an opportunity to give bond; that if such opportunity had been afforded him he could and would have given a lawful and satisfactory bond entitling him to his release. It was also alleged that the restraint and detention of appellant was without any commitment from any court; that appellee Anderson, after said illegal arrest, confined appellant in said Harris County jail until about May 26, 1905, when he telegraphed to appellee McFatridge advising him of the arrest and confinement; that at the time McFatridge received appellant in Harris County, Texas, from appellee Anderson he knew the said Anderson and his deputies had illegally arrested appellant and were illegally restraining him of his liberty by virtue of the warrant issued by said justice of the peace of Lamar County; and that the said Anderson knew the said McFatridge intended to and and would take appellant back to Lamar County, restraining him of his liberty, and turned him over to McFatridge for that purpose. It was then alleged that appellant, by reason of the acts of appellees, suffered great humiliation, mental anguish, pain, loss of time from his work and caused to incur traveling expenses, all to his damage in the sum of $5,100.
We think the general demurrer was well taken as to Sweeney, Brashear and Dunn, the sureties on appellee Anderson's official bond, but should have been overruled as to Anderson and McFatridge. It is well settled that the liability of sureties on a sheriff's bond is limited to his official acts. In treating of this subject Mr. Murfree, in his work on Sheriffs, sec. 46, says: "They (the sureties) are responsible for the manner in which he performs, and for his omissions to perform acts which it is his right and duty to perform by virtue of his office, virtute officii; but not for those in which his official character forms the pretense or color, not the authority." It is clear, as disclosed by the allegations of appellant's petition, that the act of appellee Anderson in arresting and detaining appellant, as charged, was not an official act of his, as contemplated by the rule of law stated. Our Code of Criminal Procedure, article 238, provides that "when a warrant of arrest is issued *596 by a magistrate other than a judge of the Supreme Court, Court of Appeals, District or County Court, it can not be executed in another county than the one in which it issues, unless indorsed by some one of said judges," in which case it can be executed anywhere in the State; or if it be indorsed by some magistrate of the county in which the accused is found, it may be executed in such county. The indorsement may be: "Let this warrant be executed in the county of __________"; or if the indorsement is by one of the judges above mentioned, it may be: "Let this warrant be executed in any county of the State of Texas." It is further provided that any other words expressing the same meaning as the indorsement prescribed will be sufficient, and that the same shall be dated and signed officially by the magistrate making it.
According to the allegations of appellant's petition, which, for the purposes of the demurrer, must be taken as true, the warrant of arrest under and by virtue of which appellant was apprehended and restrained of his liberty, was issued by a justice of the peace of Lamar County, Texas, and not indorsed as required by the statute to which we have referred. This being true, said warrant was absolutely void on its face in Harris County, and clothed the said Anderson with no authority whatever to make said arrest and detain appellant as charged. The alleged acts of Anderson being extra-official and without authority of law, the sureties on his official bond are not liable therefor and can not be made to respond in damages to appellant for the consequences thereof. (Ledbetter v. State, 5 S.W. Rep., 226; Jones v. Hess, 48 S.W. Rep., 46.)
Appellant's petition set up a good cause of action for false imprisonment against appellees Anderson and McFatridge and one upon which a suit could be maintained as to both of said parties in Lamar County. Its allegations are sufficient to show that in the arrest and detention of appellant the appellees, McFatridge and Anderson, were acting together; that if the act of taking appellant into custody was done by Anderson's deputies, the same was done with said Anderson's knowledge and consent and that appellant was afterwards detained and restrained of his liberty by the said Anderson himself; that the warrant upon which the arrest was made was not indorsed as required by the statute above mentioned, so as to authorize its execution outside the limits of Lamar County, and hence, as before said, void on its face in Harris County. It further showed that appellant and the warrant upon which he had been arrested, were turned over to McFatridge in Harris County and appellant by him carried back to Lamar County; that appellee Anderson knew when appellant was delivered to McFatridge, that McFatridge would continue to restrain appellant of his liberty and intended to and would take him back to Lamar County and that he so delivered him into the custody of McFatridge for that purpose. According to these allegations the arrest of appellant and his detention up to the time of his release in Lamar County was without any legal authority, and all persons instrumental in procuring such arrest and participating in such detention were trespassers and liable to an action for false imprisonment. In speaking of the liability of wrongdoers for the acts of each other, our Supreme Court in the case of Wolf v. Perryman, *597
We believe the trial court correctly ruled upon the general demurrer as to the appellees Sweeney, Brashear and Dunn, but erred in sustaining said demurrer and the special exceptions as to appellees Anderson and McFatridge, and as to the former the judgment of the court below is affirmed and as to the latter it is reversed and the cause remanded for trial.
Affirmed in part and reversed and remanded in part.
Writ of error refused.