Cherry v. Williams, 5925
| Decision Date | 14 September 1955 |
| Docket Number | No. 5925,5925 |
| Citation | 60 N.M. 93,1955 NMSC 82,287 P.2d 987 |
| Parties | L. E. CHERRY, Plaintiff-Appellant, v. T. B. WILLIAMS and W. L. Stroud, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
William G. Fitzpatrick, Dale B. Dilts, Albuquerque, for appellant.
J. L. Leftow, Lewis R. Sutin, Albuquerque, for appellees.
This is an action to recover damages for alleged malicious prosecution against T. B. Williams, and for false imprisonment against W. L. Stroud. Defendants' motion for summary judgment was sustained. Plaintiff appeals contending that the court erred in granting said motion.
On October 18, 1950, T. B. Williams was the duly elected and acting mayor of the city of Truth or Consequences, and W. L. Stroud was the duly appointed and acting Chief of Police of said city. They were not sued in their official capacity but as individuals.
The facts as revealed by the record are in substance as follows: In 1948 the city of Truth or Consequences leased the race track property owned by it to a partnership consisting of Badger and Herring, with the exception of a small piece of land included within the boundaries of said race track that had been leased to the Sierra County Sheriff's posse. On March 8, 1951 the city secured a judgment cancelling the lease but it had been superseded and the case was pending in this court when the arrests were made. The partnership was operated under the firm name of Hot Springs Fair and Race Association. Thereafter the plaintiff became a partner in said enterprise. Sometime later the partnership was incorporated under the same name and plaintiff was one of its stockholders. He was made manager and put in charge of the grounds. He also was a concessionaire and operated a restaurant thereon. His living quarters were at the race track. Horne Brothers' Circus desiring to winter on the race track property contacted the Chamber of Commerce of said city and some members of the Sheriff's posse for permission to winter there. No agreement had been made by the circus with either the city or the corporation in possession of the premises.
On October 18, 1950, the circus arrived at Truth or Consequences and the Sheriff's posse together with the police department escorted it into town and proceeded towards the race track. When the circus caravan reached the race track, the lead car left the highway and proceeded towards the race track gate, but before it reached the same it was stopped by the plaintiff. The remainder of the circus cortege remained stopped on the traveled portion of U. S. Highway 85. At this time someone telephoned T. B. Williams and asked him to come down to the race track. Within fifteen minutes he arrived, and after viewing the situation called upon W. L. Stroud to arrest plaintiff. As ordered, Stroud arrested him and took him to the police station where he was turned over to police officer Apodaca. Plaintiff was detained at the police station more than three hours until Williams arrived at which time the said Williams filed a complaint against him for resisting an officer. He was later released upon giving a bond in the sum of $500. On October 20, 1950, another complaint was filed against him by Williams, this time charging him with disorderly conduct arising out of the same incident. And on December 15, 1950, still another complaint was filed against him by police officer Joe Whitley, charging him with resisting and ignoring a police demand on October 18, 1950. This complaint was prepared by the Chief of Police, W. L. Stroud. On January 1, 1951, all of these complaints were dismissed by the City Magistrate.
The motion for summary judgment is as follows:
'The defendants respectfully move the Court, pursuant to Rule 56 of the New Mexico Rules of Civil Procedure, for a summary judgment in their favor, and, in support of said motion, the defendants respectfully show the Court that the pleadings, depositions and admissions on file herein, show that there is no genuine issue as to any material fact, and that the defendants are entitled to a judgment as a matter of law.'
The order of dismissal reads as follows:
'This matter coming on for hearing this 23rd day of November, 1953, upon the Motion of the Defendants for Summary Judgment and the Court having heard the testimony taken by depositions and the several exhibits introduced into evidence and having heard the arguments of counsel, Finds, that the Motion for Summary Judgment of the Defendants should be granted.
'Therefore, it is ordered: that defendants' Motion for Summary Judgment be and the same is hereby granted and de...
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