Hill v. Day

• Decision Date: 28 February 1950
• Docket Number: No. 37737,37737
• Citation: 215 P.2d 219,168 Kan. 604
• Parties: HILL v. DAY.
• Court: Kansas Supreme Court

Page 219

215 P.2d 219

168 Kan. 604

HILL v. DAY.

No. 37737.

Supreme Court of Kansas.

Feb. 28, 1950.

Syllabus by the Court.

1. A petition charging malicious prosecution or unlawful arrest and imprisonment, and alleging (1) that the defendant was arrested without a warrant; (2) that he was booked in police court where he gave bail; (3) that he appeared later for trial and was tried and found guilty in police court; (4) that he later appealed and furnished an appeal bond to the district court; and (5) that the district court action was later dismissed by the city attorney, affirmatively and conclusively establishes, as against demurrer, the fact that the arresting police officer had probable cause at the time of the arrest to believe the defendant guilty of the charge for which he was arrested. This is particularly so where there was no allegation that the police court conviction was obtained by fraud or perjury.

2. In a case such as described in syllabus p1, the goving of an appearance bond in police court and the furnishing of an appeal bond to the district court constitutes a waiver of any right on the part of defendant to object to the legality of the arrest without warrant, following City of Wichita v. Hibbs, 158 Kan. 185, 146 P.2d 397.

3. Where a petition contains such allegations as referred to in syllabus p1, it does not state a cause of action for malicious prosecution or unlawful arrest and imprisonment, and a demurrer thereto was properly sustained.

Ralph H. Noah, of Beloit, argued the cause, and W. S. Norris, of Salina, was with him on the briefs, for appellant.

James P. Mize, of Salina, argued the cause, and C. L. Clark and Jason K. Yordy, also of Salina, were with him on the briefs, for appellee.

ARN, Justice.

This is an appeal from an order sustaining a demurrer to plaintiff's petition. It is difficult to ascertain from the lengthy petition whether it was intended to plead a cause of action predicated upon malicious prosecution or false arrest or both. The petition alleges:

'1. Plaintiff is now and has been for more than six years a resident of the City of Salina, in Saline County, Kansas, and his correct post office address is Salina, Kansas, and during all of the time aforesaid, and at all of the times mentioned herein, plaintiff was and is now engaged in business at 209 North Santa Fe Avenue, in Salina, Kansas.

'2. Defendant L. H. Day was at all of the times hereinafter mentioned that Chief of Police of the City of Salina, Kansas, duly appointed, qualified and acting as such officer, and was at all of such times a duly appointed, qualified and acting Police Officer of said City, and of the Police Department of said City, which is and was at all of such times a city of the first class, in Saline County, in the State of Kansas, and all of the acts of the defendant hereinafter set forth and complained of were done and performed by him under color of and by virtue of his authority as a Police Officer of said City.

'3. On the 10th day of June, 1947, at about 10:00 o'clock, a. m. of said day, plaintiff entered a cafe in the City of Salina, known as the Cafe Casa Bonita, located at the northeast corner of Santa Fe and Ash Streets in said City, at which time the defendant, L. H. Day, who was then the Chief of Police of the City of Salina, Kansas, and a duly appointed and acting Police Officer of the Police Department of said City, was in said cafe; that at or about said time, after some conversation between plaintiff and defendant, which on the part of the plaintiff was conducted in a quiet and orderly manner, the defendant, acting as a police officer as aforesaid, and wrongfully and illegally exercising the authority vested in him as such Police Officer, without any provocation or excuse whatsoever, and in the presence of numerous patrons and employees of said cafe whose names are unknown to the plaintiff, and without the plaintiff having in any manner committed any offense of crime of any kind or nature, in the presence of said defendant or otherwise, and without any warrant having been issued for the arrest of the plaintiff, arrested the plaintiff and took the plaintiff in custody, without in any manner stating or informing the plaintiff as to the cause of said arrest or the charge upon which he was arrested, and without stating anything to the plaintiff except that he was under arrest, the defendant took hold of the plaintiff's arm and forcibly took him to the Police Station of said City, which is located in the City Hall of said City about one block distant from said cafe; that while he was so being forcibly taken by the defendant to said Police Station, in the custody of defendant, the plaintiff and defendant who were on foot were in full view of members of the public who were then using the public street and the sidewalks adjacent thereto, which were crossed and traversed by the plaintiff and defendant as aforesaid in the course of said trip, so that the fact that plaintiff had been arrested and was in the custody of the defendant as a police officer could be seen and was seen by such members of the public, and during such time the defendant refused, though asked by the plaintiff, to state why the plaintiff had been arrested and placed in custody by the defendant; that when the plaintiff was taken into the police station by defendant as aforesaid, he still was not advised of the charge upon which he had been arrested and taken into custody by the defendant; that the police officer at said police station who in charge of booking prisoners who had been arrested asked the defendant what was the charge against the plaintiff, and the defendant said, 'I guess it will be disorderly conduct', or words to that effect, and the plaintiff was then, at the direction of the defendant, booked on the police blotter, which is a record kept by the Police Department of said City in said Police Station, showing the names of persons arrested by police officers and the nature of the charge on which they are arrested and the date of arrest, amount of bond required and posted, and other information, and was by a notation written on said blotter, charged with disorderly conduct, but no complaint on oath, written or oral, was then or at any other time made against the plaintiff by the defendant and no warrant for his arrest was at any time issued or served on plaintiff prior to his trial in the Police Court of said city as hereinafter referred to; that after said notation had been made on said blotter, the plaintiff was searched and his personal belongings were removed from his pockets by the defendant, and he was advised by the defendant that his trial on said charge of disorderly conduct would be held before the Police Judge of said City at four o'clock p. m. on that day and that he would be confined in the City Jail until that time unless he posted cash bail in the amount of $25.00; that plaintiff did not have that much money on his person at that time, but offered to deposit his check for that amount as bond for his appearance, but defendant refused to accept defendant's (plaintiff's) check for that purpose; that plaintiff asked permission of defendant to call certain acquainances on the telephone to arrange for the posting of such cash bond required by defendant as aforesaid, and was permitted to call two persons for the purpose of making such arrangements; that one person so called could not be located, and the other one so called could not immediately come to the Police Station, and the defendant then stated to the plaintiff that until such bond was furnished, the plaintiff would have to go to jail, and the plaintiff was then by the defendant or under his direct order removed to and placed in the City Jail, which is in a building adjacent to the City Hall in which said Police Station is located, and was locked in said jail with other prisoners then imprisoned therein, for a period of about fifteen minutes, when he was removed therefrom and again taken into said Police Station, where one Earl Roberts, who had been previously called by the plaintiff on the telephone, deposited with the defendant, in his capacity as Chief of Police of said City, the sum of $25.00, in cash or by means of a check, as bond for the release of plaintiff from custody and for his appearance in the Police Court of said City of June 13, 1947, to answer to said charge of disorderly conduct; that on said June 13, 1947, at about four o'clock p. m., the plaintiff was brought to trial in said police court before the Police Judge of said City in a case in said court entitled 'The City of Salina, Plaintiff, vs. Thomas Hill, Defendant,' on the charge placed against him by the defendant as aforesaid, of disorderly conduct, at which time the plaintiff and the defendant were present; that up to the time of the commencement of said trial, no complaint on oath had ever been made against the plaintiff charging him with disorderly conduct or any other offense against the ordinances of the City of Salina; that at the conclusion of said trial, the Police Judge of said City made an order finding plaintiff guilty of a charge that he, the plaintiff, did on the 10th day of June, 1947, unlawfully and willfully conduct himself in a riotous and disorderly manner and did commit a nuisance in a public place, and said Police Judge did order and adjudge that the plaintiff pay a fine to the City of Salina in the sum of $25.00 and the costs of said action which he taxed at $17.00 and that the plaintiff be imprisoned in the City Jail until said fine and costs were paid, and the said Police Judge then entered said charge and the finding and judgment of the Police Court as aforesaid on the docket of said Police Court; that no costs of said action in the amount of $17.00 had then accrued in said action or could accrue in said action in said Police Court under the ordinances of said city or the laws of Kansas applicable thereto; that thereupon the...