Haglund v. The Burdick State Bank

• Decision Date: 07 April 1917
• Docket Number: 20,753
• Parties: VICTOR H. HAGLUND, Appellee, v. THE BURDICK STATE BANK et al., Appellants
• Court: Kansas Supreme Court

164 P. 167

100 Kan. 279

VICTOR H. HAGLUND, Appellee, v. THE BURDICK STATE BANK et al., Appellants

No. 20,753

Supreme Court of Kansas

April 7, 1917

Decided January, 1917.

Appeal from Morris district court; ROSWELL L. KING, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ARREST OF JUDGMENT DEBTOR--For Examination before Probate Judge--Wrongfully Imprisoned in Jail. In a proceeding supplemental to execution, a sheriff holding a warrant issued under the provisions of section 7429, General Statutes of 1915, authorizing him to arrest the debtor and bring him before the probate judge, has no power to imprison the debtor in the county jail, even temporarily for safe-keeping; and this is true although the arrest be made at a distance from the county seat, which the sheriff, returning with the debtor in custody, can not reach until late at night, when the probate judge would not be at his office.

2. TRIAL -- Instructions -- Findings. An instruction to the jury complained of was properly given and findings of fact returned by the jury were sustained by the evidence.

Edwin Anderson, of Council Grove, and Frans E. Lindquist, of Kansas City, Mo., for the appellant; Clad Hamilton, of Topeka, of counsel.

Arthur J. Stanley, Guy E. Stanley, both of Kansas City, and C. B. Daughters, of Manhattan, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for false imprisonment. The plaintiff recovered and the defendants appeal.

The plaintiff resided in Kansas City, Mo., and at the inception of the proceedings resulting in his imprisonment was visiting his father, Charles Haglund, who resided at Burdick, a city in Morris county, twenty-six miles distant from Council Grove, the county seat. The Burdick State Bank was located at Burdick. E. T. Anderson was its cashier. Edwin Anderson was the cashier's brother, and an attorney at Council Grove. The bank held an unsatisfied judgment rendered on a promissory note given by the plaintiff, and instituted proceedings against him in aid of execution. Instead of taking an order of appearance for examination, the bank, through the attorney, procured a warrant of arrest to be issued and placed in the hands of the sheriff, under the provisions of section 7429, General Statutes of 1915, which reads as follows:

"Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the judge may, upon proof to his satisfaction, by affidavit of the party or otherwise, that there is danger of the debtor leaving the state, or concealing himself, to avoid the examination herein mentioned, issue a warrant requiring the sheriff to arrest him and bring him before such judge, within the county in which the debtor may be arrested. Such a warrant can be issued only by a probate judge or the judge of the district court of the county in which such debtor resides or may be arrested. Upon being brought before the judge, he shall be examined on oath, and other witnesses may be examined on either side; and if on such examination it appears that there is danger of the debtor leaving the state, and that he has property which he unjustly refuses to apply to such judgment, he may be ordered to enter into an undertaking, in such sum as the judge may prescribe, with one or more sureties, that he will, from time to time, attend for examination before the judge or referee, as shall be directed. In default of entering into such undertaking, he may be committed to the jail of the county, by warrant of the judge, as for a contempt."

The warrant was issued at about five o'clock in the afternoon of June 15, 1914, and the plaintiff was arrested at his father's house in Burdick at about seven o'clock in the evening. The sheriff told the plaintiff he could pay $ 600 or go to Council Grove. The plaintiff said he would go to Council Grove. When the plaintiff and the sheriff reached the sheriff's automobile standing in the street the cashier of the bank was there. The plaintiff's father was a depositor having funds in the bank to the amount of $ 600. The cashier made a talk to the plaintiff about the disgrace of being taken to Council Grove and put in jail, and asked if it would not be better to pay the note, or have his father pay it. The plaintiff owned nothing at the time except some lots in Illinois which he had traded for. They cost him $ 1500 and were assessed at $ 1200. His papers were in the house and he went for them. When he produced them the cashier observed that the plaintiff's name was not in the deed and the deed had not been recorded. The cashier urged the plaintiff to pay, and urged the plaintiff's father to pay, to save all the trouble of having to go to Council Grove. The plaintiff's father was willing to pay if the plaintiff would request it, but the plaintiff preferred to go to Council Grove. The plaintiff had read the warrant and understood he would be taken before the probate judge. An accident to the automobile caused delay, and Council Grove was not reached until about eleven o'clock at night. The sheriff placed the plaintiff in the county jail and locked him in. About seven o'clock the next morning the sheriff called the plaintiff for breakfast and the plaintiff ate breakfast in jail. After that the plaintiff saw no one until about ten o'clock in the forenoon, when the sheriff admitted the attorney for the bank into the jail. The attorney remained in the jail talking to the plaintiff until about noon, the sheriff being present part of the time. Among other things, the attorney said it would be better for the plaintiff to have the attorney telephone the plaintiff's father at Burdick to pay the note than for the plaintiff to be kept in jail and that the plaintiff was to be kept in jail until the note was paid. Because of the threat to keep him in jail until he did it, the plaintiff gave the attorney permission to telephone the plaintiff's father. About noon the probate judge, who had issued the warrant, heard from some source that the plaintiff was in jail. He went to the jail, procured a key from the women there, went in, got the plaintiff, and took the plaintiff to his office, arriving there about one o'clock in the afternoon. Sometime afterward the attorney came to the probate judge's office, told the plaintiff his father had settled the note, and said the plaintiff could go back to Burdick at any time. The attorney had telephoned the cashier at Burdick and the cashier had interviewed the plaintiff's father. The plaintiff's father related the conversation as follows:

"He told me Vic was in jail, and it would be the best thing if you go over to the bank and would write out a note and then they will let him out. And another thing he says, 'He ain't got no folks in there and nobody knows him there,' he says; 'I don't like to sign any note,' says I, 'because he says last night that he didn't want to ask me to do it.' 'Well, you had better come over to the bank and you sign a note and then I will telephone to Council Grove and he will get out and be free.'"

The bank collected from the plaintiff's father the sum of $ 600, which the jury found to be $ 124.10 more than the debt, with interest to the time of satisfaction. The plaintiff settled with his father for the money which his father paid. This story is taken from the evidence favorable to the plaintiff, upon which, under the familiar rule, it is assumed the verdict in favor of the plaintiff rests.

The jury were instructed that, notwithstanding the fact the sheriff arrived in Council Grove with the plaintiff in the night-time, when the probate judge would...