Mudrock v. Killips

• Decision Date: 06 April 1886
• Parties: MUDROCK v. KILLIPS AND ANOTHER.
• Court: Wisconsin Supreme Court

65 Wis. 622

28 N.W. 66

MUDROCK

v.KILLIPS AND ANOTHER.

Supreme Court of Wisconsin.

April 6, 1886.

Appeal from circuit court, Waukesha county.

Sumner & Tullar, for respondent, Martin Mudrock.

C. E. Annin and W. J. Turner, for appellants, William Killips and another.

TAYLOR, J.

This is an action for assault and battery alleged to have been committed upon the respondent and his wife by the appellants. Upon the trial in the circuit court the plaintiff had a verdict for $1,000 damages in his favor, and from the judgment entered thereon the defendants appeal to this court. To the complaint of the plaintiff the defendants answered separately-- First, by a general denial; and, secondly, by justifying the assault and battery in an attempt to arrest the respondent upon a warrant issued against him by a justice of the peace. The evidence shows that William Killips procured from E. J. LOOMIS, a justice of the peace of the town of New Berlin, in the county of Waukesha, a warrant in a civil action for the arrest of the respondent, Martin Mudrock. The warrant on its face was regular in form, and had upon it the following indorsement:

“At the request and risk of the plaintiff, I authorize Joshua Killips to execute and return this writ.

E. J. LOOMIS, Justice of the Peace.”

The evidence shows that Joshua Killips is the son of William Killips, the plaintiff named in said warrant, and that William Killips delivered the warrant to his son, Joshua, to serve upon the respondent, Mudrock; that he accompanied Joshua to the house of Mudrock to make the arrest; and that the assault and battery complained of was committed in attempting to execute such warrant. The evidence further shows that the justice of the peace, LOOMIS, issued the warrant upon the following affidavit, and upon no other proof:

“ State of Wisconsin, County of Waukesha, Town of New Berlin--ss.: I, William Killips, of the above-named town and county, first being duly sworn, depose and say that, at the town of New Berlin, Martin Mudrock ( alias) obtained a settlement for house rent by giving me a fraudulent order, which I received in good faith; otherwise should not have settled for said rent.

WM. KILLIPS.

Dated New Berlin, April 20, 1885.”

The appellant Joshua Killips was not present when the warrant was issued, and knew nothing of what transpired before the justice; nor does it appear that he was informed by his father, or any one else, before he undertook to execute the warrant, of the facts which transpired before the justice when it was issued. There was, perhaps, evidence in the case which would have justified the court in submitting to the jury the question whether the defendant Joshua Killips did not abuse his authority under the warrant in making the arrest. The learned circuit judge did not, however, submit that question to the jury, but instructed them that “under the law of the case, as entertained by the court, the evidence in regard to the complaint and warrant before the justice, LOOMIS, and any justification that that might furnish to these defendants for this assault and battery, are excluded from the case, upon the ground that no offense was charged, and that the defendants are not justified in anything they have done by virtue of the warrant.” This charge was excepted to by the defendants, and they allege it as error in this court.

It is not denied by the learned counsel for the appellants that the warrant was issued by the justice without authority of law, no such affidavit having been made as required by section 3602, Rev. St., in order to justify the justice in issuing a warrant for the arrest of a defendant in a civil action; nor is it asserted that the warrant issued in such case would protect the plaintiff causing the same to be issued. The same rule should be applied to the issuing of a warrant for the arrest of the defendant in a civil action, so far as the plaintiff is concerned, as in proceedings by attachment; and if the affidavit required by the statute to be first made before the warrant is issued is radically defective, the justice has no authority to issue the same, and it is void as to the party at whose request the same is issued. It has been uniformly held by this court that if the affidavit upon which a writ of attachment is issued be insufficient, the writ is no protection to the plaintiff in an action against him for trespass in seizing the property of the defendant by virtue of the writ. Miller v. Munson, 34 Wis. 579. In New York, where the law in regard to issuing a warrant for the arrest of a defendant in an action in justice's court was in all respects similar to our statute, it was held that the party procuring the warrant upon an insufficient affidavit was liable to the party arrested in an action of trespass. Loder v. Phelps, 13 Wend. 46;Bowman v. Russ, 6 Cow. 234. There was no error, therefore, in the charge, so far as it affected the rights of the appellant William Killips; but it seems very clear to us that Joshua Killips, who was not a party to the action, and who took no part in procuring the warrant, and had no knowledge of the facts in relation to its issue except what appeared on the warrant itself, stands in a different position. Having been appointed by the justice to serve the warrant, and such appointment being in the form prescribed by law, it seems to us that he had all the rights of a constable or sheriff in the execution of such warrant, and if he did no more than was necessary in executing the same he could not be held liable as a trespasser, or for assault and battery. The learned circuit judge did not state his reasons for holding the writ void as to Joshua Killips.

It is claimed by the learned counsel for the respondent in this court that the warrant was no protection to Joshua because he was a son of the plaintiff in the action; because the writ was not directed to him in the body of the warrant; and because the...