Drake v. Keeling

• Decision Date: 23 September 1941
• Docket Number: No. 45609.,45609.
• Citation: 299 N.W. 919,230 Iowa 1038
• Parties: DRAKE v. KEELING, Sheriff, et al.
• Court: Iowa Supreme Court

230 Iowa 1038

299 N.W. 919

DRAKE

v.KEELING, Sheriff, et al.

No. 45609.

Supreme Court of Iowa.

Sept. 23, 1941.

STIGER, J., dissenting.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Action for damages brought against sheriff and two deputies and their respective sureties by reason of the claimed false arrest and imprisonment of plaintiff.Verdict was returned jointly against sheriff and the two deputies.Opinion states further facts.Trial court sustained a motion for a new trial.Plaintiff appeals, and deputy sheriffs and their bondsmen file a cross-appeal.

Affirmed on both appeals.Walter F. Maley and Joseph A. Dyer, both of Des Moines, for plaintiff-appellant.

Carl A. Burkman, of Des Moines, for C. F. Keeling, defendant-appellee.

Stipp, Perry, Bannister & Starzinger and Donald Holdoegel, all of Des Moines, for defendantFidelity & Casualty Co. of New York.

Howard Hall and Comfort, Comfort & Irish, all of Des Moines, for defendantFred Berg and another.

Howard Hall, Carr, Cox, Evans & Riley, and Ehlers English, all of Des Moines, for defendantL. E. Forbes and another.

WENNERSTRUM, Justice.

The litigation that has occasioned this appeal is an action for damages for claimed false arrest brought by plaintiff against C. F. Keeling, Sheriff of Polk County, Iowa, and two of his deputies, Fred Berg and L. E. Forbes.At the time of his arrest plaintiff was residing in Omaha, Nebraska where he was employed as a truck driver.Plaintiff was taken into custody by the Omaha authorities on or about May 16, 1936, by reason of a telegram sent from the Polk County Sheriff's office and over the signature of C. F. Keeling as sheriff.The deputies, Berg and Forbes, on instructions from a superior deputy sheriff, went to Omaha and assumed to arrest plaintiff and returned with him to Des Moines, inasmuch as he had waived extradition.The plaintiff was placed under arrest by reason of the filing of an information charging one J. O. Drake with the issuance of a false check.After plaintiff was returned to Polk County it developed that he was not the person who had issued the claimed false check and he was discharged from custody.He thereafter brought the action for damages by reason of his false arrest against Keeling, sheriff, and Berg and Forbes, the deputies, and their respective sureties.

This case has heretofore received the consideration of this court.At the first trial the district court directed a verdict in favor of the defendants.Appeal was taken to this court which reversed the trial court, holding that the evidence presented a jury question.This opinion is found in 287 N.W. 596.The facts as developed in the first trial, and as set out in the first opinion, are almost the same as those presented in the second trial.Consequently a restatement of the facts will not be necessary except those required to be commented upon.

Upon the second trial the jury returned a verdict as follows: “We, the jury in the above entitled case find for the plaintiff and against the following defendant or defendants, C. F. Keeling, Fred Berg, Loren E. Forbes, and fix the amount of his recovery at $5500.00.”In connection with the submission of the court's instructions and the verdict form, there was also submitted to the jury six interrogatories which as answered by the jury were to the effect that they found plaintiff entitled to actual damages against the defendant, C. F. Keeling, Sheriff of Polk County, Iowa, in the amount of $4,500 and against Fred Berg and Loren E. Forbes, the Deputy Sheriffs, each in the amount of $500.In answer to other interrogatories as to whether or not they found any exemplary damages against the sheriff and the deputies the jury answered each of them in the negative.Thereafter judgment was entered in favor of the plaintiff and against C. F. Keeling in the sum of $4,500 with interest at 5% and also against Fred Berg, deputy sheriff and L. E. Forbes, deputy sheriff, each in the sum of $500, with interest at 5% and for costs against each and all of said defendants.

The defendant, Fidelity & Casualty Company of New York, surety on Keeling's bond, as sheriff, filed a motion for a new trial and exceptions to instructions, and Keeling filed a like motion as an individual.The Fidelity & Casualty Company also filed a motion for arrest of judgment on the ground that there had been a misjoinder of partiesdefendant, and a further motion to vacate judgment for costs heretofore entered, which included judgment for costs entered in the Supreme Court after the first appeal.They claimed as a basis for the last motion a misjoinder of parties and also non-liability of either Keeling or his sureties for any acts or conduct of the sheriff or his deputies outside the State of Iowa.Keeling, individually, filed a motion in arrest of judgment for the same reasons.Keeling and his surety also filed a motion for priority of judgment and a resistance to the motion of the defendants, Berg and Forbes and their sureties, for priority of judgment.An additional motion for order fixing and determining the order of liability was filed by Keeling.

Berg and Forbes and their sureties, likewise filed a series of motions.A motion in arrest of judgment was filed by the Aetna Casualty & Surety Co., surety for Forbes.There was filed by Forbes and the Aetna Casualty & Surety Company a motion for judgment jointly against Berg and the Massachusetts Bonding & Insurance Company and Forbes and the Aetna Casualty & Surety Company in the amount of $500.Forbes and his surety jointly filed a motion in arrest of judgment, and they jointly filed a motion to fix order of liability, and a further motion to vacate judgment.Berg and the Massachusetts Bonding & Insurance Company also filed a motion in arrest of judgment, a motion to fix order of liability, and a further motion to vacate judgment, also a motion for judgment against them in the sum of $500, and the Massachusetts Bonding & Insurance Company filed a separate motion in arrest of judgment.

The court in ruling upon the several motions summarized the questions before it as follows:

1.Were Keeling, as sheriff, and his bondsmen liable for the acts of Keeling's agents or deputies outside of the State of Iowa?

2.Was there a misjoinder of partiesdefendant?

The court in its written memorandum, granting a new trial, held that it had been in error in submitting the issue of fact relative to the plaintiff's arrest in Omaha, Nebraska and as to plaintiff being taken into custody there by the sheriff's deputies.The trial court held that the case of Kendall v. Aleshire, 28 Neb. 707, 45 N.W. 167, 28 Am.St.Rep. 367, andMcLean v. State ex rel. Roy, 5 Cir., 96 F.2d 741, 119 A.L.R. 670, should be followed and that these cases were sound authority for his admitted error in submitting the fact question relative to the deputies' acts outside the State of Iowa.

The court also held that it had been in error in that there had been a misjoinder of partiesdefendant and cited the following cases: Cogswell v. Murphy, 46 Iowa 44;Bort and Baldwin v. Yaw, 46 Iowa 323;Mendenhall v. Wilson, 54 Iowa 589, 7 N.W. 14;Prader v. National Accident Ass'n, 107 Iowa 431, 78 N.W. 60;Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 132 N.W. 945, 134 N.W. 1064, 40 L.R.A.,N.S., 102;Dickson v. Yates, 194 Iowa 910, 188 N.W. 948, 27 A.L.R. 533;Producers' Livestock Marketing Ass'n v. Livingston et al., 216 Iowa 1257, 250 N.W. 602.

The defendants, Berg and Forbes, and their respective sureties, did not ask for a new trial but the trial court held that it was within the power of that court to grant a new trial when it believed that in so acting it would accomplish justice.The court further held, in its ruling, that in the event the plaintiff elected to accept a joint judgment of $500 against the defendants, Keeling, Berg and Forbes, and their respective sureties, the order of liability should be first, against Berg and Forbes and their bondsmen, and next against Keeling and his bondsmen.It was the further ruling and order of the court that if the plaintiff elected to file a remittitur of all sums above the joint judgment of $500 against Keeling, Berg, and Forbes, and their respective bondsmen, judgment could be entered thereon, and in event of plaintiff's failure to file said remittitur, a new trial would be granted to all defendants.

The plaintiff did not elect to file said remittitur and has appealed from the various rulings and holdings of the court in granting a new trial.Forbes and his surety, and Berg and his surety, filed a cross appeal on the ruling of the court granting a new trial on its own motion and upon other grounds incorporated in the motions filed and as set out in their specifications of error.

By reason of the verdict form returned by the jury, the answers to the interrogatories submitted by the court, and the numerous motions filed by the several parties it would appear that perhaps the court and counsel may have felt that they were lost in a legalistic maze.But from every such involved situation there is a way out and it shall be our purpose to endeavor to act as a guide for further consideration of this particular litigation.

[1] Was the court in error in holding in its ruling on the motion for a new trial that the testimony relative to the plaintiff's arrest in Omaha, Nebraska and the acts of the deputy sheriffs in taking him into custody was improperly submitted to the jury?Unquestionably it will be admitted that a warrant of arrest issued in one state may not be executed in another state.As stated in American Jurisprudence, volume 4, paragraph 19, Arrest: “A warrant * * * has no validity beyond the boundaries of the state by whose authority it was issued.”See, also, Law of Arrest, Perkins, Iowa Law Review, volume 25, page 223.The case of Kendall v. Aleshire, 28 Neb. 707, 45 N.W. 167, 168, 28 Am.St.Rep. 367, which was relied on by the trial court in its ruling on the motion...