Drumm v. Cessnum

• Decision Date: 10 February 1900
• Docket Number: 11,462
• Parties: A. DRUMM et al. v. JAMES CESSNUM
• Court: Kansas Supreme Court

59 P. 1078

61 Kan. 467

A. DRUMM et al. v. JAMES CESSNUM

No. 11,462

Supreme Court of Kansas

February 10, 1900

Decided January, 1900.

Error from Wabaunsee district court; WILLIAM THOMSON, judge.

Affirmed.

STATEMENT.

THIS cause was tried below upon an amended petition, which alleged, in substance, that in October, 1890, the defendants A. Drumm, A. J. Snyder, and George T. Vance, maliciously unlawfully, and without probable cause, caused plaintiff James Cessnum, to be arrested on a warrant issued by J. D Lewis, a justice of the peace of Wyandotte county, in pursuance of a complaint filed with said justice by George T. Vance, charging plaintiff with obtaining from the firm of Drumm & Snyder the sum of $ 3587.44 under false and fraudulent pretenses, by representing to them that he was the owner of certain horses and cattle then on his farm in Wabaunsee county; that he had a good right to mortgage the same to secure said amount of money, which he requested Drumm & Snyder to lend to him, when in truth and in fact he had not the right to mortgage said stock and was not the owner thereof; that he (Cessnum) had theretofore mortgaged said stock to the Bank of Topeka and C. F. Jilson, as trustee, and that Drumm & Snyder relied on said statement and pretenses as being true, when in fact they were false, and by color of which Cessnum obtained from them the sum of money aforesaid; that plaintiff was arrested on such warrant and taken from his home in Wabaunsee county and carried to the county of Wyandotte and imprisoned in the common jail for eight days; that he waived an examination before said justice and gave bond for his appearance at the district court of Wyandotte county; that afterward defendants, Drumm & Snyder, wholly abandoned the prosecution, and the same was dismissed and the plaintiff discharged; that plaintiff suffered loss of health and great injury to his business and reputation, all to his damage in the sum of $ 15,000.

Defendants below answered by a general denial. The cause was tried by jury, resulting in a verdict for the plaintiff below in the sum of $ 5000.

Judgment Affirmed.

Robert C. Heizer, for plaintiffs in error.

George G. Cornell, M. B. Nicholson, Frank Herald, and A. H. Case, for defendant in error.

OPINION

SMITH, J.:

It is assigned as error that the court erred in admitting in evidence a certified copy of the warrant upon which plaintiff below was arrested, for the reason that no proper foundation had been laid therefor, and no legal certificate was attached to it by any person authorized to make the same. The certificate is as follows:

"State of Kansas, County of Wyandotte, City of Kansas City, ss. This is to certify that W. A. Snook, the undersigned, is a justice of the peace of the city of Kansas City, in the county of Wyandotte and state of Kansas; [that I am the successor in office as justice of the peace of J. D. Lewis, a former justice of the peace of Kansas City, county of Wyandotte, state of Kansas;] that as such successor I am the legal custodian, and have in my possession, all the dockets, papers and files pertaining to my office as justice of the peace, as well as successor in office to said J. D. Lewis, preceding justice of the peace; that the written instrument to which this certificate is attached is a true and correct copy of a paper among the files in the case of The State of Kansas, plaintiff, against James Cessnum, defendant; that the same is a full, true and correct copy of the original warrant of arrest now on file among the papers of which I am custodian as justice of the peace, and now on file in my office. In witness whereof I have hereunto subscribed my official hand, at my office at Kansas City, in Wyandotte county, in the state of Kansas, this 25th day of April, 1898.

W. A. SNOOK, Justice of the Peace."

The trial court admitted the copy of the warrant but refused to permit that part of the certificate enclosed in brackets, which stated that Snook was the successor in office of J. D. Lewis, a former justice of the peace of Wyandotte county, to be read in evidence.

It is contended that section 4, chapter 97, General Statutes of 1897 (Gen. Stat. 1899, § 4641), does not include within its terms a warrant in a criminal case. This section reads:

" § 4. Copies of proceedings had before a justice of the peace, where said justice is out of office, certified by the justice who is in possession of the docket and papers of such justice, shall be received in evidence in any court in this state."

The position taken by counsel for plaintiff in error is untenable. A warrant issued by a justice of the peace must be included within the term "proceedings." In Gordon. v. The State, ex rel., 4 Kan. 489, the term "proceedings" was held to mean all the steps or the measures adopted in the prosecution or defense of an action. See, also, Jackson Co. v. Hoaglin, 5 Kan. 558; Wilson v. Macklin, 7 Neb. 50; School District v. Cooper, 44 Neb. 714, 62 N.W. 1084; The Knox County Bank of Mt. Vernon v. Doty et al., 9 Ohio St. 505; Yeager v. Wright et al., 112 Ind. 230, 13 N.E. 707; Morewood against Hollister, 6 N.Y. 309.

Whether it was competent for Mr. Snook to certify to a proceeding had before Lewis is not a material consideration. There was other competent testimony to establish the fact of the issuance of the warrant by Lewis. Mr. Freeman, the county attorney, testified that Drumm and Vance advised with him concerning the arrest, and that the complaint was made and filed before Lewis, and that the warrant was issued upon said complaint. Mr. Berger also, the deputy county attorney, testified that the complaint was filed before J. D. Lewis, and the warrant was returnable before him. This testimony was admitted without objection. Mr. Drumm testified that he and Vance went to the county attorney and procured the arrest of Cessnum, and Mr. Vance stated, as a witness, that he signed and verified the complaint before J. D. Lewis, and that he understood that a warrant was to be issued upon the same.

The certified copy of the recognizance given by Cessnum in the district court recites the arrest of defendant in error on complaint of G. T. Vance before J. D. Lewis justice of...