Gelzenleuchter v. Niemeyer

• Decision Date: 03 November 1885
• Citation: 64 Wis. 316,25 N.W. 442
• Parties: GELZENLEUCHTER v. NIEMEYER.
• Court: Wisconsin Supreme Court

64 Wis. 316

25 N.W. 442

GELZENLEUCHTER

v.NIEMEYER.

Supreme Court of Wisconsin.

Filed November 3, 1885.

Appeal from circuit court, Columbia county.

The complaint alleges in effect that November 13, 1883, the defendant, at Columbus, Columbia county, maliciously, and with force and arms, assaulted the plaintiff, and, with intent to injure him, directed, caused, and procured him to be forcibly, and against his will, arrested, imprisoned, and restrained of his liberty for the space of six hours, without any reasonable or probable cause whatever, and without any right or authority so to do, to his damage, etc. The answer justified the arrest and imprisonment as being duly and lawfully made by the deputy sheriff of that county, under and by virtue of a criminal warrant duly and lawfully issued by a justice of the peace of that county, the body of which warrant is as follows: “Whereas, Hy. W. Niemeyer has this day made complaint, on oath, in writing, to the undersigned, a justice of the peace for said county, that John Gelzenleuchter did, on the ninth day of November, A. D. 1883, at the city of Columbus, in said county, unlawfully and maliciously use in reference to this complainant, and in the presence of John A. Kitzerow, abusive language, by calling the complainant ‘a swindler,’ which language naturally tended to provoke a breach of the peace, against the peace and dignity of the state of Wisconsin, and prays that the said John Gelzenleuchter may be arrested and dealt with according to law. Now, therefore, you are hereby commanded forthwith to apprehend the said John Gelzenleuchter and bring him before me, to be dealt with according to law. Given under my hand at Columbus this ninth day of November, 1883.” That the plaintiff, on being brought before the justice, pleaded to the charge, procured an adjournment, and was released on his own recognizance; and on the adjourned day tried and found not guilty. On the trial of this action the plaintiff put in evidence to the effect that the complaint upon which the criminal warrant was issued, and therein mentioned, was made, signed, and sworn to by the defendant in this action, November 9, 1883; that said complaint was then filed with and by the justice, who thereupon issued the criminal warrant mentioned, reciting substantially all that is contained in the complaint, and delivered it to the defendant; that the defendant's attorney delivered the criminal warrant to the deputy-sheriff, who arrested the plaintiff thereon, as stated, and kept him under arrest thereon for about three hours; that on the day the defendant made the complaint for the criminal warrant before the justice, he violently, and without any cause or provocation, assaulted, struck, kicked, and greatly injured the plaintiff. At the close of the plaintiff's testimony the court granted a nonsuit and dismissed the action, and from the judgment entered thereon the plaintiff brings this appeal.J. J. Sutton, for appellant, John Gelzenleuchter.

G. W. Stevens and P. G. Stroud, for respondent, Henry W. Niemeyer.

CASSODAY, J.

The attempt was made, as it is claimed, to prosecute the plaintiff for the violation of section 4398, Rev. St. It is not claimed that the plea of not guilty and adjournment before the justice was any waiver of the question of jurisdiction. It clearly was not within the rule stated in Steuer v. State, 59 Wis. 472;S. C. 18 N. W. Rep. 433. The learned counsel for the defendant frankly concedes that the complaint made by the defendant before the justice charges no offense whatever, and that the warrant issued thereon, reciting the complaint, charges no offense whatever; and hence that the warrant is absolutely void upon its face,--especially within the rule announced by this court in Steuer v. State, supra. With equal frankness the same counsel also concedes that the evidence in the record tends to show that the defendant maliciously made the complaint, and that he received the warrant from the justice, delivered it to his attorney, who delivered it to the officer for the purpose of having the plaintiff arrested thereon; and that the plaintiff was arrested and imprisoned thereon for the space of three hours. The counsel for the defendant also concedes that had the defendant caused the plaintiff to be arrested upon a void process in a civil action, then he would have been liable therefor in an action for false imprisonment, as this clearly is, even though he acted in good faith. But counsel ingeniously contends that “an action for false imprisonment cannot be maintained against a party who makes, or attempts to make, a criminal complaint to a magistrate, upon which the magistrate causes an arrest for issuing his warrant, whether the facts stated constitute an offense or not.” In support of this contention he cites several authorities, English and American.

A careful reading of these cases discloses the fact that they are all distinguishable. In Beaty v. Perkins, 6 Wend. 382, both the warrant and the complaint upon which it was issued seemed to have charged an offense, and of course it was held that the party making the complaint was not liable in trespass. In Stewart v. Hawley, 21 Wend. 552, the constable who made the arrest was the party who made the complaint to the justice, and it was held that an action of trespass, or false imprisonment, could not be maintained against him or the justice, and this was put on the ground that the recitals in the complaint and warrant presented “a case within the jurisdiction of the justice, and which called for the exercise of his judicial functions, and if so, though he may have erred, he is not liable.” Page 556. Chief Justice NELSON said: “I cannot agree with the plaintiff that the facts are so barren as not to lay the foundation for jurisdiction, or that the decision was so gross as to afford evidence per se of the influence of bad motives.” In Von Latham v. Libby, 38 Barb. 345, the opinion of the court expressly states that “the only connection of the defendants with the arrest or detention of the plaintiff * * * is that they stated their case to the magistrate, charging the plaintiff with a misdemeanor upon the facts which they swore to, and asked for his arrest;” and for that reason it was held that they were not liable for false imprisonment. Several of the other cases relied upon by counsel are to the same effect, as in Murphy v. Walters, 34 Mich. 180:Grinham v. Willey, 4 Hurl. & N. 496; Barber v. Rollinson, 1 Cromp. & M. 330; Carratt v. Morley, 1 Q. B. 18; West v. Smallwood, 3 Mees. & W. 418. The true distinction is sharply made in the last two cases cited. In West v. Smallwood the warrant of arrest was without jurisdiction, and it was held that a party merely making a complaint before a magistrate on a...