Johnson v. Morton

• Decision Date: 03 December 1892
• Citation: 53 N.W. 816,94 Mich. 1
• Court: Michigan Supreme Court
• Parties: JOHNSON v. MORTON et al.

53 N.W. 816

94 Mich. 1

JOHNSON v. MORTON et al.

Supreme Court of Michigan

December 3, 1892

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Action by William R. Johnson against Robert Morton and others for false imprisonment. From a judgment for defendants, plaintiff brings error. Affirmed.

Elbridge F. Bacon, (Brennan & Donnelly, of counsel,) for appellant.

Atkinson & Carpenter, for appellees.

MCGRATH, C.J.

Plaintiff was arrested upon a capias. He moved to vacate the order to hold to bail and quash the writ on the ground that the affidavit was insufficient. The motion was denied, but upon application to this court, a mandamus was issued, directing that the writ be vacated and the proceedings quashed. Plaintiff now brings trespass for false imprisonment, and the sole question is whether the order to hold to bail, granted by the circuit judge, protects the party making the affidavit, and applying for the issuance of the writ, when no malice or lack of probable cause is averred or shown. Section 7302 of our statute provides that certain actions named, arising upon contracts, may be commenced by capias when the plaintiff, or some one in his behalf, shall make and attach to the writ an affidavit stating certain facts. Section 7304 provides that "personal actions may be commenced by capias in cases of claims for damages, other than those arising upon contract, when an order for bail shall be indorsed on the writ by a judge of the court from which the writ issues or a circuit court commissioner;" and section 7305 provides that "such order shall be made only upon the affidavit of the plaintiff, or some person in his behalf, showing the nature of the plaintiff's claim." Under sections 7304 and 7305, the plaintiff is required simply to set forth the nature of his claim, and the judge or circuit court commissioner judicially determines whether the case made comes within the exceptions named in the constitution, and whether it will warrant the indorsement and issuance of the writ. The statute expressly confers upon the judge or circuit court commissioner authority to act, and power to determine the question. The judge to whom application was made for the order had ample power to entertain the application, and upon the proper affidavit to indorse the order. An affidavit was presented in which defendant here set forth, in substance, that plaintiff here was employed as agent of affiant to sell goods and make collections; that as such agent, he had collected some of the money, which he had not accounted for; that he had falsely and fraudulently pretended that he had accounted for all moneys received by him; that settlements had been made with said agent upon the faith of his representations; that he had not accounted for all moneys collected; that he had collected large sums of money, and fraudulently kept back and concealed the same, and converted the same to his own use, intending to cheat and defraud his employer, and to embezzle the same; that affiant obtained his knowledge that moneys had been collected and not accounted for by comparison of the statement of moneys collected, made by said agent, with the statements made by customers; that it also appears, by many receipts given by said agent to customers, that large sums of money had been collected by said agent, that said agent had not accounted for; that it also appears, by admission made by said agent to affiant that many accounts had been collected by said agent that he had not reported or accounted for. It is evident that this affidavit lacks in detail and in certainty, and for that reason it is insufficient, but it cannot be said that it sets forth no facts or circumstances indicating fraud or breach of...