Rosvall v. Provost

• Decision Date: 12 January 1968
• Docket Number: No. 40574,40574
• Citation: 279 Minn. 119,155 N.W.2d 900
• Parties: Velva ROSVALL, Appellant, v. Roger PROVOST et al., Respondents.
• Court: Minnesota Supreme Court

Page 900

155 N.W.2d 900

279 Minn. 119

Velva ROSVALL, Appellant, v. Roger PROVOST et al., Respondents.

No. 40574.

Supreme Court of Minnesota.

Jan. 12, 1968.

Rehearing Denied Feb. 21, 1968.

Syllabus by the Court

1. It is a complete defense to an action for false imprisonment that the arresting officer acted in good faith to enforce a law, or in compliance with process legally sufficient on its face, even though the law or the process may in fact be invalid.

2. Malice is a necessary element of malicious prosecution, and a willful misuse of process is a necessary element of abuse of process.

3. Upon a motion for summary judgment supported by affidavits setting out specific facts which, if true, would demonstrate the absence of a cause of action, the adverse party cannot preserve his right to Chester A. Bruvold, Minneapolis, and Ben Toensing, Hopkins, for appellant.

trial on the merits merely by referring to unverified and conclusionary allegations in his pleading or by postulating evidence which might be developed at trial in the course of cross-examination of adverse parties.

William Merlin, Minneapolis, for respondents.

OPINION

SHERAN, Justice.

Appeal from a judgment of the district court.

Plaintiff, Velva Rosvall, instituted an action for damages, claiming that defendants had confiscated a number of dogs owned by her to her loss in the sum of $655; that as a result of a course of conduct stemming from difficulties involving these dogs, defendants had removed plaintiff from her home, confined her in jail, and caused her to be placed in the Anoka State Hospital, all to her damage in the sum of $25,000; and that, as a consequence of plaintiff's enforced absence from her home, damage to it and its contents in the amount of $5,000 was sustained. Defendants acknowledged liability for the value of the dogs as claimed. Their motion for summary judgment as to the remainder of plaintiff's cause of action was granted. The judgment from which this appeal is taken was then entered.

The issue in the case is whether the record clearly demonstrates that plaintiff has no claim against these defendants for such damage as may have resulted from her absence and confinement. The record available to the trial court included (a) the pleadings, including the complaint which alleges that the acts of defendants Roger Provost, Al Flynn, and Jerry Nelson were done 'as the officers and agents' of the city of Coon Rapids pursuant to an unconstitutional ordinance and that the conduct of these defendants was 'willful, intentional, malicious, illegal and negligent'; (b) answers by plaintiff to interrogatories submitted by defendants; (c) a discovery deposition of plaintiff taken by defendant; and (d) complaints signed by defendant Provost and affidavits of William Merlin, Gerald D. Nelson, and Thomas G. Forsberg, ¹ judge of the municipal court of the city of Coon Rapids, giving the details of the affair.

Coon Rapids City Code, § 8.01, provides that a person maintaining more than three dogs on occupied premises in the city must have a dog kennel license. On September 14, 1961, Provost, the city's dog catcher, filed a complaint under oath in the municipal court of the city of Coon Rapids charging that plaintiff was maintaining a dog kennel in the city without the required license. On September 18 plaintiff apepared in the municipal court and entered a plea of guilty. A fine of $100 was imposed (with imprisonment the specified alternative of payment), but sentence was suspended until September 23 upon condition that plaintiff would secure a kennel license or would get rid of all except three dogs. Not having secured such license by October 23, plaintiff was given 10 days to dispose of the dogs.

On January 25, 1962, Provost applied to the municipal court for a warrant authorizing a search of the premises occupied by Mrs. Rosvall. A warrant issued from that court authorizing any police officer of the city to enter the Rosvall premises to search for unlicensed dogs and to bring the 'property when found, and the person or persons in whose possession such property is found,' before the court. See, State v. Stoffels, 89 Minn. 205, 94 N.W. 675.

Gerald D. Nelson, with the assistance of Provost and one Al Flynn, executed the warrant on January 29 at about 9:45 a.m. Nelson is a Coon Rapids police officer and Flynn is the city's building inspector. After preliminary resistance on the part of Mrs. Rosvall which was concluded by her apprehension, the search was carried out. Twelve dogs and five puppies, all unlicensed, were found on the premises. These dogs were seized. Mrs. Rosvall was brought before the municipal court that evening.

Nelson claims in his affidavit that on the morning of January 30, 1962, he was informed that Mrs. Rosvall was refusing to eat at the county jail. He discussed the problem with the county attorney. A 'Petitioner for Commitment' was prepared by the county attorney's office, which Nelson executed. This petition contained the following statement with respect to Velva Rosvall:

'Maintains herself in her home in such an unsanitary condition and did have in her home 29 dogs, and that the filth and debris and garbage in her home evidence very unsanitary conditions; that she has written strange letters, evidences unreasonable behavior; when confined to the County Jail she has refused to eat and carries on in an unreasonable and irrational manner.'

Except for these acts, Nelson had no knowledge of or other relationship with Mrs. Rosvall.

Judge Forsberg, in his affidavit dated August 24, 1966, avers:

'* * * That on September 18, 1961 the said Velva Rosvall appeared before affiant, Judge of the Municipal Court of the city of Coon Rapids, and entered a plea of guilty to the offense of operating a kennel without a license. She stated that she would either secure a license from the City of Coon Rapids or reduce the number of dogs in her possession to 3, in which case a kennel license was not required. The Court in deference to her request imposed a fine of $100.00 or 30 days but suspended sentence upon condition that she do one or the other (secure a license or get rid of all dogs in excess of 3), by September 23, 1961. She failed to comply with the conditions but appeared in Court on September 23, 1961 asking for an extension of time as she would be appearing before the City Council. Affiant granted an additional extension to September 30, 1961.

'Again, she failed to comply with the Court's suspension order and, again, the Court extended her time to October 18, 1961. On or about January 1, 1962 the Police reported to the Court that she had not complied with the Court suspension order. The Court was reluctant to revoke the suspension order on the basis of information thus furnished so the Police requested a search warrant and executed a search warrant complaint and, accordingly, a search warrant was issued on January 25, 1962. The...