Dall v. Garras, 67.

Citation306 Mich. 313,10 N.W.2d 897
Decision Date07 September 1943
Docket NumberNo. 67.,67.
PartiesDALLAS v. GARRAS.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

False imprisonment action by Peter Dallas against Sam Garras. From a judgment for plaintiff after defendant's motions for directed verdict and for judgment non obstante veredicto were overruled, defendant appeals.

Affirmed.Appeal from Circuit Court, Arenac County; John C. Shaffer, judge.

Before the Entire Bench.

A. Lewis Fineberg and James A. Jameson, both of Detroit (J. Russell Hughes, of Standish, of counsel), for appellant.

Harry E. Converse, of Standish (Arthur J. Kinnane, of Bay City, of counsel), for appellee.

CHANDLER, Justice.

This action is for damages by plaintiff against defendant for false imprisonment. Plaintiff was imprisoned in the Arenac county jail for a period of about three weeks by virtue of a writ of capias ad satisfaciendum issued by the clerk of the Arenac Circuit Court at the institution of defendant.

The undisputed facts show that sometime prior to September, 1940, defendant and appellant herein began an action in the Circuit Court for the County of Arenac against plaintiff and appellee to recover for merchandise shipped by appellant to appellee which was sold by appellee and to be paid for by him. While the declaration purports to declare in trespass on the case, it contains two counts, namely, a special count in assumpsit, and the common counts in assumpsit, and undisputably shows that the action was one in assumpsit and not in tort. The bill of particulars attached shows items of merchandise shipped to defendant therein between December 1938 and 1939 to the amount of $5,380 and payments amounting to $4,522, leaving a balance due of $858. A judgment by default was entered for said balance. The journal entry in said action was the ordinary one for monies due as in any assumpsit action, except that it contained on the margin the words ‘Trespass on the Case. The judgment entry was as follows:

Sam Garras, d/b/a

Evergood Ham Company v. Peter Dallas

Trespass on the Case No. 863

In this cause, the default of the said Peter Dallas, for want of an Answer, having been duly entered, and the same having become absolute, and the damages of the said Plaintiff having been duly assessed at the sum of Eight Hundred Fifty-eight and 26/100 ($858.26) over and above his costs and charges, by him about his suit in this behalf expenses; therefore, on motion of A. Lewis Fineberg, attorney for said plaintiff, it is ordered and adjudged by the Court now here, that the said Sam Garras, d/b/a Evergood Ham Company, do recover against the said Peter Dallas, his damages aforesaid, together with his costs and charges aforesaid, which are hereby taxed at the sum of Twenty-Six and 10/100 ($26.10), and that the said Sam Garras, plaintiff, have execution thereof.'

On March 28, 1941, the clerk of the Circuit Court for the County of Arenac, at the request of the appellant herein, issued a writ of capias ad satisfaciendum, or body execution, on the aforementioned judgment for the arrest of plaintiff, which writ was placed in the hands of the sheriff of the county for execution by appellant. Plaintiff was then arrested and confined in the county jail, appellant paying his board to the sheriff to keep him so confined until his release therefrom by order of the court on April 18, 1941.

It appears from the record that the sheriff took the writ of capias ad satisfaciendum to the Prosecuting Attorney of Arenac County before making the arrest but the Prosecuting Attorney went no further in investigating as to whether the writ was valid than to read it. The defendant could not have relied upon the Prosecuting Attorney's judgment in the matter as the Prosecutor's opinion was not sought by the defendant nor was his opinion given until after the writ was issued. He made no investigation to ascertain in form of the pleadings or the judgment entry by virtue of which the clerk signed the writ which was presented and requested by the defendant.

The instant case was commenced by summons issued out of the Circuit Court for the County of Arenac on the 16th day of April, 1941, which summons was served on defendant on the date of issuance. Plaintiff's declaration was filed on May 1, 1941, and on the 13th of May defendant moved for the dismissal of the cause for the following reasons:

‘1. Because service of process was had on the Defendant, Sam Garras, on Wednesday, April 16, 1941, while the said Defendant was in the City of Standish, Michigan, seeking counsel to represent him in a Habeas Corpus proceedings, instituted by the Plaintiff, who was confined to the County Jail under a body execution, which writ was to be heard by this Honorable Court on Friday, April 18, 1941. Because the Defendant was immune from service of process at the time service of process was had on him.

‘2. Because the present action, which was commenced by summons, was prematurely brought. There being no cause of action against the Defendant on the 16th day of April, 1941. Because if there was any action against the Defendant it did not develop until the 18th day of April, 1941, when a decree was entered by this Honorable Court, releasing the said Plaintiff from the Arenac County Jail. Because the present action is one for false imprisonment, and could not be maintained until the court entered the decree on the 18th day of April, 1941.’

In support of the motion for dismissal, appellant filed an affidavit alleging that on the 16th day of April, the date of service of summons on him he was in the City of Standish, County seat of Arenac County, for the purpose of seeking counsel to represent him in the habeas corpus proceedings instituted by plaintiff herein which was to be heard by the Circuit Judge of said county on April 18th.

Appellee filed a counter-affidavit in opposition to said motion denying that appellant was in the City of Standish on the day in question for the purpose of seeking counsel to represent him or for the purpose of attending court as a witness in or a party to said habeas corpus proceeding. The affidavit so filed in opposition to said motion was made and sworn to by one James A. Kappellas of Bay City. The affidavit showed that appellant came to Bay City from Detroit on the 16th day of April and told deponent that he was going to Standish to see if he could make a deal with Peter Dallas and his wife by which he could collect the money which Dallas owed him; that appellant said that he did not know Mrs. Dallas who operates a restaurant in Standish and wanted deponent to go with him and introduce him to her and help him talk business with her; that deponent accompanied appellant to Mrs. Dallas' restaurant at Standish and that while in said restaurant an officer entered and served a summons on appellant; and that until that time appellant had said nothing about seeing a lawyer and had not mentioned a habeas corpus proceeding or any other court procedure.

In view of the showing and counter-showing made by the affidavits, we determine that the trial court was amply justified in denying appellant's motion to quash service of the summons. Appellant was not immune from service of process under the circumstances disclosed by the record. The other reason alleged in the motion for dismissal of the action is without merit.

Appellant contended in the court below and on this appeal insists that the instant action was prematurely instituted. His counsel is...

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5 cases
  • National Discount Corp. v. O'MELL
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 18 Febrero 1952
    ...not controlling, and the Court will determine from the complaint whether the action is one in tort or one in contract. Dallas v. Garras, 306 Mich. 313, 316, 10 N.W.2d 897; Thrift v. Haner, 286 Mich. 495, 497, 282 N.W. In the present case, the complaint alleges both borrowed money with a ref......
  • People of City of Detroit v. Pillon
    • United States
    • Court of Appeal of Michigan — District of US
    • 29 Julio 1969
    ...imprisonment for a debt only where it arises from a contract. People v. White (1884), 53 Mich. 537, 19 N.W. 174. See Dallas v. Garras (1943), 306 Mich. 313, 10 N.W.2d 897. Imprisonment for nonpayment of taxes then is not prohibited by Const.1963, art. 1, § 21, for as the Michigan Supreme Co......
  • Scott Paper Company v. Fort Howard Paper Company
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 25 Mayo 1972
    ...not controlling, and the Court will determine from the complaint whether the action is one in tort or one in contract. Dallas v. Garras, 306 Mich 313, 316, 10 N.W.2d 897; Thrift v. Haner, 286 Mich. 495, 497, 282 N.W. The court there noted that the inherent nature of the claim, as opposed to......
  • Grammas v. Kettle
    • United States
    • Michigan Supreme Court
    • 7 Septiembre 1943
  • Request a trial to view additional results

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