Berrier v. Moorhead

• Decision Date: 06 January 1888
• Citation: Berrier v. Moorhead, 22 Neb. 687, 36 N.W. 118 (Neb. 1888)
• Parties: BERRIER v. MOORHEAD, SHERIFF, ET AL.
• Court: Nebraska Supreme Court

22 Neb. 687

36 N.W. 118

BERRIER

v.MOORHEAD, SHERIFF, ET AL.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

In an action against a sheriff, for damages for unlawful imprisonment, under an indictment for a misdemeanor, where the petition alleges that a recognizance, with ample security, was tendered to the sheriff, and a discharge of the plaintiff demanded thereunder, but such discharge was refused, but it was shown by the petition that no affidavit of qualification of the sureties was attached to or accompanied the undertaking, the petition would not, for that reason alone, be demurrable.

Under the law of amendments contained in the Civil Code, where a petition is held defective and a demurrer thereto sustained, if it appears that the petition is susceptible of amendment, the district court should permit such an amendment to be made, upon such terms as to costs as would be just.

The law of amendments should be liberally construed in order to prevent a failure of justice.

Error to district court, Nuckolls county; MORRIS, Judge.

Action by Henry Berrier against Philip C. Moorhead, sheriff of Nuckolls county, and the sureties on his bond, for false imprisonment. A demurrer to the petition was sustained, and the plaintiff asked leave to amend, which was refused. The plaintiff brings error.H. W. Short, for plaintiff in error.

W. A. Bergstresser, for defendants in error.

REESE, J.

This action was commenced in the district court of Nuckolls county against the sheriff of said county, for the recovery of damages alleged to have been sustained by plaintiff, by reason of the wrongful imprisonment of himself by defendant. A general demurrer was filed to the petition, which was sustained, application of plaintiff for permission to amend his petition denied, and the cause dismissed. Plaintiff alleges error in this court. We here quote the petition in full:

“Henry Berrier, plaintiff in the above-entitled cause, deposes and says: (1) That on the twenty-ninth day of April, 1885, he was arrested under a state warrant issued out of the district court of Nuckolls county, Nebraska, upon an indictment found by the grand jury in said Nuckolls county, Nebraska, at the April term, 1885, against this plaintiff for a misdemeanor, to-wit, resisting an officer, to-wit, the sheriff of said Nuckolls county, Nebraska, and his deputies, on the twenty-fifth day of March, A. D. 1885, in performing their duties. That the said Philip C. Moorhead, as sheriff aforesaid, on the twenty-ninth day of April, 1885, took this plaintiff and lodged him in the common jail of said county. That the offense for which this plaintiff was arrested and imprisoned was and is bailable under the statute, and the law of the state. And immediately thereafter the said district court adjourned, having fixed the amount of bail at the sum of three hundred dollars. That afterwards, to-wit, May 1, A. D. 1885, at three o'clock P. M., this plaintiff, by his attorney, H. W. Short, procured and delivered to said Philip C. Moorhead a good and sufficient bond for the appearance of this plaintiff on the fifth day of October, A. D. 1885, at ten o'clock A. M., that being the first day of the next regular term of said court, as fixed by Hon. W. H. MORRIS, judge, on the first day of January A. D. 1885, and as will appear from the journal entry of said district court, and to do and to receive what shall be adjudged by said court upon him, and shall not depart the said court without leave; which said bond was signed by Henry W. Short, James M. Hall, S. A. Lopp, and J. Ritterbosh, residents and freeholders of the county of Nuckolls and state of Nebraska, whose aggregate wealth is at least thirty thousand dollars, over and above all debts and liabilities. That said sheriff of Nuckolls county, Nebraska, Philip C. Moorhead, at the time of the delivery of said bond, and upon demand for the release from confinement of the said Henry Berrier, now in jail, so made by his attorney, H. W. Short, then and there refused to release said prisoner from said jail of Nuckolls county, Nebraska, and still continued and refused to release said plaintiff for the space of ______ days. That said Philip C. Moorhead, as sheriff, made and executed and delivered to Nuckolls county, Nebraska, his bond of office, a copy of which is hereunto attached, marked ‘Exhibit A,’ and made a part of this petition. That said sheriff is guilty of oppression in the discharge of his...