Burnett v. Prince
| Decision Date | 27 July 1917 |
| Citation | 197 S.W. 241,272 Mo. 68 |
| Parties | SPOTTSWOOD D. BURNETT, Appellant, v. CHARLES W. PRINCE |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.
Reversed and remanded.
J. D Shewalter for appellant.
(1) Any illegal restraint of another constitutes false imprisonment. Boeger v. Langenberg, 97 Mo. 390; McCaskey v Garnett, 91 Mo.App. 354. But when plaintiff showed his imprisonment defendant "may justify my showing legal process but he must plead it." Thompson v Buchholz, 107 Mo.App. 121. The amended answer so far from showing legal process as a defense, alleged facts which show that the process was illegal. This alleged a suit in another court and also a subpoena to appear which was void for the reason that it was issued before any notice, even if it had been issued in a pending suit. Ex parte Canada, 151 Mo.App. 710; Millspaugh v. Railroad, 138 Mo.App. 31. (2) But the process on which the defendant was arrested was wholly illegal and the arrest thereunder was false imprisonment.
Glen Sherman, J. E. Westfall and J. N. Beery for respondent.
(1) The appeal ought to be dismissed for the reason that the pamphlet purporting to contain the record proper, the bill of exceptions, statement, points and authorities, brief and argument are so commingled as to render it practically impossible to intelligently distinguish one part from the other. Royal v. Railroad, 190 S.W. 573. (2) The pamphlet purporting to contain an abstract of the record proper fails to show the term of court, if any, when the motion for a new trial was ruled upon, for the nature of the motion for a new trial. True, the pretended abstract of the record refers to the bill of exceptions, but this court cannot be referred to the bill of exceptions. Under the rules of this court the abstract of the record proper shall "set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision." Coleman v. Roberts, 214 Mo. 634; Sonnenfeld v. Rosenthal, 247 Mo. 265; Strother v. Barrow, 246 Mo. 241; Steel Co. v. Cottengin, 179 Mo.App. 397; Merrill v. Trust Co., 46 Mo.App. 242. (3) The sufficiency of the evidence to warrant the verdict and judgment is not complained of by the appellant in his assignment of errors or points and authorities or in the argument, it is taken as confessed that the point so raised is not well taken and is abandoned by the appellant. Crowell v. Linseed Co., 255 Mo. 305; Pale v. Insurance Co., 173 Mo.App. 485; Meredith v. Whitlock, 173 Mo.App. 542. (4) The notice was sufficient. The notice gave the title of the case, the court in which the cause was pending, the time when and the place where the depositions would be taken. Moreover, the defendant agreed in writing that the depositions may be taken. Sec. 6392, R. S. 1909; Ornisby v. Granby, 48 Vt. 44; Grocery Co. v. Stevens, 65 Ill.App. 609; Murray v. Phillips, 59 Ind. 56; Lumber Co. v. Fidelity & Deposit Co., 161 Col. 397. The notice given for the taking of the depositions contains this memorandum, signed by the appellant. Delisle v. McGillivary, 24 Mo.App. 680; Seymour v. Farrell, 51 Mo. 97. (5) There is only one circuit court of Jackson County. "The Sixteenth Judicial Circuit shall consist of the county of Jackson." Sec. 3995, R. S. 1909. (6) The clerical error of describing the circuit court of Jackson County, as being at Kansas City, is merely unnecessary description, and may be rejected; there being only one circuit court, legally known as the Sixteenth Judicial Circuit Court consisting of Jackson County, such description could not possibly have misled the appellant. Rand v. Dodge, 17 N.H. 354; Thompson v. Stewart, 3 Conn. 180.
The suit is for damages for false imprisonment, brought in the Jackson County Circuit Court. On the trial of the cause, March 4, 1914, after all the evidence had been introduced by both the plaintiff and the defendant, the court instructed the jury to return a verdict for the defendant.
On the 14th of November, 1907, the plaintiff herein was arrested on an attachment issued by W. W. Calvin, notary public, on account of his failure to appear on that day and give his deposition in a case pending in the circuit court of Jackson County, Independence Division, wherein B. C. Boyles was the plaintiff, and the plaintiff here, S.D. Burnett, was the defendant. Plaintiff was arrested at his farm, some four or five miles from Independence, and taken by the constable under the attachment to the office of Calvin in Kansas City where he arrived about five or six o'clock p. m. The notary discharged him upon being informed that the notice to take depositions was irregular in particulars explained below. This arrest furnished ground for the cause of action charged in the petition.
The answer alleges that a suit was filed in the case of Boyles v. Burnett on the 11th day of November, 1907, in the circuit court of Jackson County, at Independence, and on the same day a notice was served on the plaintiff herein that depositions would be taken in the cause on the 14th of November, 1907; but by a mistake in writing the notice, it recited that the cause was pending in Kansas City instead of Independence; that on the same day, November 11th, this plaintiff was served with subpoena to appear on the 14th before the notary named therein and give his deposition in said cause; summons was served on the plaintiff herein on the 12th day of November, 1907, whereby he became apprised of the mistake in the notice to take depositions, but concealed that knowledge from the defendant herein for the purpose of creating a damage suit, and plaintiff would not have been molested if he had revealed the fact of such mistake.
The plaintiff claimed, as shown by his reply and his evidence introduced at the trial, that the suit on which the notice was served was not filed until November 12th, and therefore when the notice to take depositions was served upon him there was no suit pending corresponding to the notice, for which reason he was not bound to appear. It was further claimed by the defendant that inasmuch as the notice to take depositions stated that the depositions were to be taken in a suit pending in Jackson County at Kansas City, it was not notice of the suit actually filed, even if it had been filed at the time notice was served, because that suit was filed at Independence instead of Kansas City.
The notice to take depositions as copied in the record contains the mistake mentioned, but the subpoena alleged to have been served at the same time was not introduced by either party, nor any offer made by either party to show that it was lost or to prove its contents. The only evidence of the service of a subpoena on November 11th was that while plaintiff was on the stand, after stating that he had received the notice to take depositions, he was asked:
As further justification, apparently, for issuing the attachment, another supoena was introduced in evidence dated November 13th. This subpoena was placed in the hands of the constable at the same time he received the attachment on the 14th, and he took both the subpoena and attachment and served the subpoena at the same time he made the arrest in the afternoon of the 14th.
To prove the suit was filed November 11th, defendant offered the petition in the case of Boyles v. Burnett, showing the rubber stamp file mark as follows: "Filed Nov. 11, 1907, Oscar Hochland, Clerk, by A. R. White, Deputy."
On the part of plaintiff two deputy clerks were introduced and identified books kept in the office of the clerk of the circuit court which purported to contain entries made when cases were filed. In each of these some entry in relation to filing the case of Boyles v. Burnett, No. 18,750, appears under date of November 12, 1907. These books also showed several other entries on the day's business of November 12th, before the entries in relation to the case of Boyles v. Burnett. The two deputy clerks who testified to these matters explained that the rubber filing stamp had an arrangement by which they would move up the date each morning in order to change it from the previous day and stated that they would sometimes forget to change it in the morning until after they had used the stamp; that the stamped date on the petition, "November 11, 1907," possibly was made in that way on the morning of the 12th before they discovered it had not been moved up, and that according to this record the suit must have been filed on November 12th. The deputy, A. R. White, who stamped the file mark on the petition as of the date of the 11th and in whose handwriting appeared the entry on one of the books, stated he could not remember the filing of the case, but thought that the file mark was correct.
I. Almost the entire space in respondent's brief is taken up with numerous objections to the record. Because these objections are urged so persistently we notice a few of them as follows:
It is asserted that the abstract of the record proper fails to abstract any final judgment rendered. The abstract of the record proper shows the following:
This abstracts a judgment for defendant as fully as need be. If it were a judgment for plaintiff some further particulars as to the character of the judgment might be necessary, but being a judgment for the defendant this describes its character.
It is complained that the record proper fails to show that a motion for...
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