Galarza v. Sprague

• Decision Date: 23 March 1936
• Docket Number: Gen. No. 38595.
• Parties: GALARZA v. SPRAGUE ET AL.
• Court: United States Appellate Court of Illinois

284 Ill.App. 254

1 N.E.2d 275

GALARZA

v.SPRAGUE ET AL.

Gen. No. 38595.

Appellate Court of Illinois, First District, First Division.

March 23, 1936.

Appeal from Circuit Court, Cook County; Roman E. Posanski, Judge.

Action by Maximino Galarza against A. A. Sprague and another, as receivers of the Chicago, North Shore & Milwaukee Railroad Company. From a judgment for plaintiff, defendants appeal.

Reversed. Gardner, Foote, Morrow & Merrick, of Chicago (Walter M. Fowler, of Chicago, of counsel), for appellants.

Harold L. Levy and Lawrence S. Jacobson, both of Chicago (Lawrence S. Jacobson, of Chicago, of counsel), for appellee.

O'CONNOR, Justice.

Plaintiff brought an action against defendants for false arrest and malicious prosecution. There was a verdict and judgment in plaintiff's favor for $1,000, and defendants appeal.

The record discloses that defendants are receivers of the Chicago, North Shore & Milwaukee Railroad Company, a corporation, which maintains a railway station at the northwest corner of Broadway and Wilson avenue, Chicago. The station is used by the railroad company in the customary manner; certain parts of it are leased for business purposes.

On the afternoon of January 17, 1933, Maximino Galarza, also known as Max Dumont, went to the station to keep an appointment with a person he was to meet at the station. While waiting for this person to appear, he met a friend, and they talked to a young lady who was conducting a popcorn stand in the station for her employer. The friend left in about five minutes, and plaintiff testified that he continued to talk to the young lady for about twenty-five minutes, when one of defendants' employees in the station, McArdle, said to him, “Can you get this girl a better job than she has now?” that plaintiff thought the man who addressed him was the employer of the young lady and he apologized; that thereupon McArdle “ordered me out in a sharp tone of voice and I told him I resented his tone of voice; that I was no bum, and then he says, ‘If you don't like it I will throw you in the can.’ I said, ‘If you are such a big shot, go ahead.’ Then an officer was coming in the place of business * * * and he called him over and I was taken into custody” by a police officer who gave plaintiff permission to go to his bank to see if he could get money for bail. Finding the bank closed, plaintiff went to a barber shop to see if he could get assistance, and was then taken to the station and locked up until some time during the forenoon of the following day, when, the evidence shows, he made bail and the case was continued and set for hearing on January 21st. When defendant was taken to the station on the 17th, McArdle signed a quasi criminal complaint charging defendant with disorderly conduct in violation of section 4210 of the Revised Chicago Code of 1931, in that Dumont was “annoying a woman.” When the case came up on January 21st for hearing, the complaint was amended by the city prosecutor so as to charge that defendant “then and there wilfully and unlawfully engaged in a quarrel with this affiant,” and the amended complaint was then sworn to by McArdle. At that time defendant was represented by counsel; he waived his right to trial by jury, and witnesses were sworn, some called by the city and some by defendant. At the conclusion of the hearing, the court found defendant guilty and assessed a fine of $25. Defendant prayed an appeal, which was allowed, and the appeal bond was fixed at $100, bill of exceptions in thirty days. Afterward, on February 15, 1933, counsel for defendant served a notice on the city attorney that he would, on February 17th, at 9:30 o'clock in the morning, appear before Judge Edelman of the municipal court (who had tried the case) at the branch of the municipal court of Chicago to be held in the town hall located on the northwest side of the city, and ask that the judgment be vacated; that in support of the motion he would present defendant's affidavit and the affidavit of the young lady in charge of the popcorn stand in the railway station. On February 17th an order was entered by the municipal court continuing defendant's motion to February 20th, and the record discloses that on that day the municipal court entered the following order:

“This cause coming on for hearing upon the motion of the defendant heretofore entered herein to vacate judgment of January 21st, 1933, and the Court being fully advised in the premises sustains said motion.

“This cause coming on in regular course for trial, the plaintiff though called in open Court comes not, and fails to prosecute this suit. Wherefore, for want of prosecution of this suit it is ordered that said plaintiff be nonsuited, and that this suit be and it hereby is dismissed out of this Court, and that said defendant be and hereby is discharged.”

About seven months afterward plaintiff brought the instant suit to recover damages for false arrest and malicious prosecution.

The evidence shows that, on the trial of the quasi criminal charge of disorderly conduct in the municipal court on January 21, 1933, McArdle, who was employed by the receivers in the instant case as master at the Wilson avenue station, and Iverson, who was also employed by the receivers as chief special agent, testified for the city in the prosecution of Galarza, or Dumont, as he was named in the complaint. Dumont testified in his own behalf, and the young lady in charge of the popcorn stand and who was subpœnaed by Galarza or Dumont, was called by both sides and testified. At the conclusion of this evidence, the municipal court found Dumont guilty and imposed a fine of $25.

The evidence further shows that, when defendant's motion to vacate the judgment in that case came on for hearing on February 17th and again on February 20th, neither McArdle, Iverson, nor the young lady appeared. The uncontradicted evidence also is that neither McArdle nor Iverson was notified or had any knowledge that defendant was to make such motion. And we think it also appears from the order entered by the municipal court on February 20th (which we have above quoted) that no one appeared on behalf of the city on either of these two occasions. The only notice that was given was to the city attorney that a motion would be made to vacate the judgment. There was no notice that, if the motion were allowed, the case would be immediately put on trial.

We have heretofore given the substance of plaintiff's testimony, except he further testified that, after McArdle spoke to him, Iverson, who had come into the station, came over, and at about that time two police officers came into the station and were requested by McArdle to place Dumont under arrest, which was done. In the instant case McArdle and Iverson...