DeWitt v. Thompson
| Decision Date | 13 April 1942 |
| Docket Number | 34939. |
| Citation | 192 Miss. 615,7 So.2d 529 |
| Court | Mississippi Supreme Court |
| Parties | DEWITT v. THOMPSON et al. |
Austin & Austin, of Jackson, for appellant.
Heidelberg & Roberts, Currie & Currie, Earle L. Wingo, E. J Currie, and Geo. W. Currie, all of Hattiesburg, for appellees.
The appellant, Malcolm DeWitt, brought this action in the Circuit Court of Forrest County, against Mack W. Thompson, sheriff of that county, and one of his deputies, Barney Brannon, and the U. S. F. & G. Co., surety on the sheriff's official bond, and against Judge Benjamin Stevens, Chancellor of the Tenth Chancery Court District of this state, to recover damages in the sum of $5,000, charged to have been suffered by him at the hands of the defendants, as the result of a false arrest and imprisonment. A demurrer was interposed by each of the defendants, which was sustained, and the suit dismissed. From that judgment DeWitt prosecutes this appeal.
Leaving off the formal parts of the declaration, it follows:
"On September 26, 1940, and theretofore the defendant, Ben Stevens, had been duly elected and was serving as chancellor in Forrest county, Mississippi, along with other counties in his district, and that the defendant, Mack W. Thompson had been duly elected and was at said time as aforesaid serving as sheriff of Forrest County, Mississippi, having taken the oath of office and furnished bond as provided by law, and had as one of his deputies the defendant, Barney Brannon, serving as a deputy sheriff of Forrest County, Mississippi, and the defendant, the United States Fidelity and Guaranty Company was surety on the official bond of Mack W. Thompson as sheriff of Forrest County, Mississippi, said bond being in the penal sum of $10,000.00, being dated November 15, 1939, a copy of said bond being hereunto attached as Exhibit 'A' and prayed to be considered a part hereof.
That on said date, to-wit: September 26, 1940, the plaintiff, Malcolm DeWitt, was a resident citizen of Forrest County Mississippi, having resided there a number of years, and that while at the home where he and his wife, the former Mrs. Mary Lou Smith, were residing, Mr. Barney Brannon, a deputy sheriff of Forrest County, Mississippi, came to their home and told them, the plaintiff and his wife, to come and go with him to the court house, that the Honorable Ben Stevens, the chancellor, wanted to see them, whereupon the plaintiff requested that he be allowed to change his clothes, but he was informed by the said Barney Brannon that that would not be necessary, that they would only be in court for just a few minutes and that he would bring them back home. That prior to the time of the plaintiff's marriage his wife had formerly been the wife of one A. C. Smith from whom she was divorced on the 14th day of June, 1940, by decree of the chancery court of Forrest County, Mississippi, as shown by the minutes of said court in Minute Book 19, page 638 and 639. That said decree recited among other things as follows:
That the said plaintiff and his wife were carried by the said Barney Brannon to the court house on said September 26, 1940, as aforesaid and were carried before the Chancellor, Ben Stevens, and on this occasion the plaintiff was bawled out by the said Chancellor, Ben Stevens, and that when this plaintiff sought to question the chancellor as to what this matter was all about he was told by the chancellor to shut his mouth and that on that occasion the chancellor, Ben Stevens, defendant herein, entered the following order:
'Mrs. Mary Lou Smith
A. C. Smith
The court finding that the mother of the children having remarried and now being married to one Malcolm DeWitt, and finding that neither the mother or the stepfather are suitable or fit persons to have the custody of the children and that said children are seriously neglected and their best welfare jeopardized, and that the mother and stepfather are threatening to flee the jurisdiction of this court and remove the children from the jurisdiction of the court:
It is ordered, adjudged and decreed that the order of the court entered in this cause on the 14th day of June, 1940, be and the same is set aside as to the custody of said children, and it is ordered that the said Malcolm DeWitt and Mrs. Mary Lou Smith DeWitt be remanded to the Forrest County jail until they shall make bond in the sum of $500.00 conditioned that they will remain within the jurisdiction of the court and that they or neither of them will remove the children from the jurisdiction of the court.
So ordered, adjudged and decreed, this the 26th day of September, 1940. Ben Stevens, Chancellor.'
That immediately upon the entering of this order by the defendant Ben Stevens, the plaintiff made further inquiry as to what this was all about and the defendant, Ben Stevens, thereupon told the said Barney Brannon to 'put this man under the jail;' and the plaintiff was thereupon carried to the Forrest County jail where he was locked up and kept for a period of five days before he was released. That all of the aforesaid was done by the defendants, the said Ben Stevens and Barney Brannon, without authority of law, excuse, or justification. That this plaintiff was not a party to the suit involving the custody of the Smith children as aforesaid, that no summons or citation had been issued commanding him to appear in court, nor had any warrant for his arrest been issued nor had he been charged with any crime, but that this was a high-handed procedure on the part of these defendants against this plaintiff and that when the said plaintiff was released from jail as aforesaid he was then carried by the said Barney Brannon outside of the city limits of the City of Hattiesburg, Forrest County, Mississippi, and told by the said Barney Brannon that the judge, namely the defendant, Ben Stevens, had instructed him to inform the plaintiff that he was not to be seen in Hattiesburg until he had secured employment. This arrest and false imprisonment was without authority and without any warrant and without excuse or justification and that...
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