Johnson v. Finch
| Decision Date | 31 October 1885 |
| Citation | 93 N.C. 205 |
| Court | North Carolina Supreme Court |
| Parties | L. E. JOHNSON v. JOHN W. FINCH. |
CIVIL ACTION, tried at September Term, 1885, of DAVIDSON Superior Court, before Montgomery, Judge.
The complaint alleged in substance that on or about the 18th day of July, 1883, the defendant maliciously intending to injure the plaintiff, and falsely pretending that he, the defendant, held a certain debt against the plaintiff, which was due and unpaid, at a time when plaintiff was upon the eve of removing with his family to another State, wilfully and maliciously caused to be issued a certain order of arrest, and caused the plaintiff to be arrested.
That plaintiff at the time of the suing out of said order of arrest against him, owed defendant nothing, but was by said order of arrest forced unjustly to pay the defendant money.
That portion of the answer material to an understanding of the opinion was as follows: This defendant, for further answer to the allegations contained in paragraph 1st of said complaint, says that a short time before the plaintiff was about leaving the State, he was informed by his attorney that there was a docketed judgment pending in the Superior Court of Davidson county in favor of defendant against the plaintiff for about ...... dollars and costs, and that his said attorney got a copy of said judgment signed by the Clerk of the said Superior Court of Davidson county, and that upon said docketed judgment there was no entry of an assignment to any one or that the same was satisfied, and this defendant bona fide supposing that said judgment was still due and owing to him by plaintiff, had process duly taken out and served on plaintiff for his arrest, as he was then about leaving the State with the view of changing his residence and acquiring citizenship elsewhere, and that in pursuing the said course he acted bona fide and not maliciously, but solely with the view of securing the payment of the judgment due to him as he then supposed; that the defendant was not under arrest for longer than one hour, when he was released and discharged, and that the morning after plaintiff's arrest, the defendant ascertained that he had seven or eight years prior to said arrest, assigned said judgment to John H. Welborn; that said assignment did not appear on the docketed judgment referred to, on the said docket of the Superior Court of Davidson county, and that defendant was misled thereby, and by the writing of the Clerk of the Superior Court of Davidson, that said judgment was still due plaintiff and unpaid, and plaintiff further says that he had forgotten that he had transferred said judgment to John H. Welborn, and in all that defendant did in regard to said arrest, he was actuated by no malice nor from a wanton disposition to injure the plaintiff in any way, but that he acted bona fide, and upon reasonable cause as he is advised and believes, and without the slightest disposition on his part to injure in the least the plaintiff, and defendant says that the said arrest caused no injury to the plaintiff, occasioned no loss, expense or inconvenience to the plaintiff, and that plaintiff is entitled to no damages; and
2nd. For a further defence, this defendant says that he has tendered to plaintiff full compensation as required under the provisions of law for any inconvenience and expense the plaintiff may in any way have sustained, including the costs of this case occasioned by the honest mistake of defendant.
When the case was called for trial, and after the jury had been impanelled, the defendant's counsel moved the Court to dismiss the action upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
His Honor dismissed the action, and the plaintiff appealed.
No counsel for the plaintiff.
Mr. M. H. Pinnix, for the defendant .
The plaintiff brought this action to recover damages from the defendant for maliciously and without probable cause, having him arrested under a warrant of arrest granted by a justice of the peace in a civil action, wherein the present plaintiff was defendant, and the present defendant was plaintiff.
The complaint is not only very informal, but it is defective in respect to a matter of substance. It fails to allege in terms or in effect, that the action in which the warrant of arrest was granted was terminated before this action was begun. It is necessary that such allegation should be made in alleging such a cause of action. Howell v. Edwards,, 8 Ired., 516; Hewitt v. Wooten, 7 Jones, 182; Hatch v. Cohen, 84 N. C., 602.
It is to be observed that the facts stated in the complaint do not wholly fail to disclose a cause of action--indeed, they informally constitute a good one, except in the respect mentioned above. The case is therefore quite different from one in which the facts stated, wholly fail to state or constitute a cause of action. In the latter case, the plaintiff cannot maintain his action at all--he states no cause of action, either perfectly or imperfectly, defectively, or otherwise; there is nothing alleged of which the Court can take jurisdiction,...
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