Kaeppler v. Red River Valley National Bank

• Decision Date: 27 May 1899
• Citation: 79 N.W. 869,8 N.D. 406
• Court: North Dakota Supreme Court

79 N.W. 869

8 N.D. 406

CARL A. KAEPPLER v. RED RIVER VALLEY NATIONAL BANK

Supreme Court of North Dakota

May 27, 1899

Appeal from District Court, Cass County; Pollock, J.

Action by Carl A. Kaeppler against the Red River Valley National Bank of Fargo. Judgment for defendant, and plaintiff appeals.

Reversed.

Reversed.

H. R Turner and Morrill & Engerud, for appellant.

The order of arrest was void, section 6013, Rev. Codes, under which it was procured, is unconstitutional in so far as it authorizes the arrest of an alleged insolvent. Art. I, Sec 15, Const; Resser v. Hoyt, 18 N.W. 611. The jurisdiction to arrest on civil process except in specified instances is taken away. The power is exceptional and extraordinary, depending upon the statutes granting and limiting the exercise of the power. When the power is attacked the burden lies on the party who seeks to uphold it to show clearly that the statute has been strictly complied with. Stafford v. Low, 20 Ill. 152; Bryan v Congdon, 53 U. S. App. 505; Mudrock v. Killips, 28 N.W. 66; Miller v. Munson, 34 Wis. 579; Spice v. Steinruck, 14 Ohio St. 213; Sheridan v. Briggs, 19 N.W. 189; Marble v. Curran, 29 N.W. 725; Wachsmith v. Bank, 21 L. R. A. 278; Estes Pl. § 3966. The affidavit for arrest was insufficient in its statement of facts to confer jurisdiction. Peo. v. Recorder, 6 Hill. 429; Hauss v. Kohlar, 25 Kan. 640; Matoon v. Eder, 6 Cal. 57-60. The affidavit being insufficient, the annulment of the proceeding made it void ab initio and authorized action for false imprisonment. Bryan v. Congdon, 43 U. S. App. 505; Fischer v. Langbein, 103 N.Y. 84; Day v. Bach, 87 N.Y. 56; Kerr v. Mount, 28 N.Y. 659; 19 Am. & Eng. Enc. L. 516, and n.; Addison, Torts, § 831 and § 921. Advice of counsel is only competent in a case of this kind, when shown to rebut malice. Brewer v. Jacobs, 26 F. 217; Hamilton v. Smith, 39 Mich. 232; Wyatt v. Corey, 76 Me. 87; White v. Carr, 36 Am. Rep. 353; Sparlinger v. Conway, 12 Mo.App. 510; Collard v. Gay, 1 Tex. 494; Wills v. Noyes, 12 Pick. 324. And the jury must take into consideration in determining the good faith of the defendant the relations existing between defendant and the attorney whose advise is sought in regard to the proceeding in question. Sherburne v. Redman, 51 Wis. 474; Platt v. Brannsdorf, 40 Wis. 107; Murphy v. Larson, 77 Ill. 172; Hamilton v. Smith, 39 Mich. 222; Brewer v. Jacobs, 26 F. 217. The cross-examination of the witness Wilson, was permitted to go entirely outside the matters inquired of by plaintiff. This was error. 1 Bish. Ev. 586; Bell v. Prewitt, 62 Ill. 362; White v. McLean, 47, How. Pr. 193; First National Bank v. Smith, 65 N.W. 439; Railroad Company v. Stimson, 14 Pet. 448; 8 Enc. Pl. & Pr. 102. If defendant could prove probable cause at all, as rebutting malice, it should have been confined to the proof of only such facts and circumstances as were known to it at the time of procuring the arrest. Brown v. Smith, 83 Ill. 291; Turner v. O'Brien, 7 N.W. 850.

Ball, Watson & Maclay, for respondent.

The action is for false imprisonment. The arrest complained of was made on legal process, out of a court having jurisdiction both of the parties and the subject matter. The allegation that the arrest was made maliciously and without probable cause, does not constitute a part of the cause of action. Murphy v. Martin, 16 N.W. 603; King v. Weed, 51 N.W. 1011; Whitten v. Bennet, 86 F. 405. The process upon which plaintiff was arrested was regular and valid. Even slight and inconclusive proof, while it may not be sufficient to sustain the process against direct attack or upon appeal, will furnish justification for the issuance of the process in an action for false imprisonment. Landt v. Hills, 19 Barb. 293; Miller v. Adams, 7 Lans. 133, 52 N.Y. 409; Van Alstyne v. Erwine, 1 Kern 34; Skinnion v. Kelly, 18 N.Y. 355; Ward v. Cozzens, 3 Mich. 252; Johnson v. Maxon, 26 Mich. 129; Johnson v. Mortin, 53 N.W. 816; Dusy v. Helm, 59 Cal. 188. The fraud mentioned in Art. 1, Sec. 15, Const., may be fraud in incurring the debt or fraud in the endeavor to evade its payment. Section 6013, Rev. Codes, is not unconstitutional. Cooley's Const. Lim. (4th Ed.) 422; Powers v. Davenport, 7 S.E. 747; Ex parte Bergman, 4 P. 209; Dummer v. Mungresser, 65 N.W. 564. Even if the statute were unconstitutional an action for false imprisonment would not lie for an arrest made under its provisions by process otherwise regular. Halleck v. Dominy, 69 N.Y. 238; Brooks v. Mangan, 46 N.W. 633; Henke v. McCord, 7 N.W. 623; Gifford v. Wiggins, 52 N.W. 904; Barker v. Stetson, 7 Gray 53; Wheaton v. Beecher, 13 N.W. 769. In actions for false imprisonment and malicious prosecution the defendant is entitled to ask the court to resolve reasonable doubts in his favor, and not in favor of prunitive or exemplary damages. Jones v. King, 33 Wis. 422; 1 Graham & W. on New Trials, 503. No actual or special damages were alleged or proved. The right to nominal damages where such damages do not carry costs will not authorize reversal. Therefore error, if any in denying appellant's motion for directed verdict (the jury found for respondent), was harmless. 8 Am. & Eng. Enc. L. (2d Ed.) 560; 1 Suth. Dam. 815; Woods Mayne on Dam. 10; Martin v. Ry. Co., 54 P. 696; Jones v. King, 33 Wis. 422; Lanbenheimer v. Mann, 19 Wis. 519; Howe v. Cochrane, 50 N.W. 368; Dunlap v. Babb, 59 Tenn. 315; McConaghy v. McMullen, 27 Wis. 73. Where no actual damages are alleged or proved no exemplary damages can be recovered. Scheppel v. Norton, 16 P. 804; Schwartz v. Davis, 57 N.W. 849; Kuhn v. Railway, 37 N.W. 116. The instruction as to the advice of counsel was correct. 2 Thomp. Trials, 1638, 1639. The questions propounded to Wilson in cross examination were proper. 8 Enc. Pl. & Pr. 109, 110, n. 1.

OPINION

BARTHOLOMEW, C. J.

Plaintiff brought an action, as he claims, and as the Court instructed the jury, under section 4971, Rev. Codes, which reads: "Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages." Under that section it is clear that an action might be brought for false imprisonment or for malicious prosecution. The facts were that the defendant caused the arrest of plaintiff in insolvency proceedings in the District Court of Cass county, and the defendant was held by the sheriff under such arrest for about 30 hours, and then released at the request of defendant, and later, upon plaintiff's application, the order of arrest was vacated. In this Court both parties state that the action is for false imprisonment. If the complaint contains any sufficient allegation that the warrant of arrest was illegal, or that the allegations in the affidavit upon which the warrant was based were false, then we think it otherwise broad enough to cover a case of false imprisonment. It certainly covers a case for malicious prosecution. It is alleged that the defendant herein "willfully and maliciously, and with intent to injure the plaintiff, made affidavit," etc., and that "in so doing the defendant acted maliciously, and without probable cause, or any cause whatever." After the testimony was closed the record shows the following proceedings: "The plaintiff thereupon moved the Court to direct the jury to return a verdict for the plaintiff against the defendant, but to leave it to the jury to ascertain and determine the amount of damages which the plaintiff is entitled to recover, under proper instructions, on the ground that the evidence in this case is undisputed that the arrest of the plaintiff was made by the defendant under process which is invalid, and furnishing no justification for the arrest, for the reason that the affidavit upon which the warrant was obtained does not state any facts sufficient to justify the issuance of a warrant, and is so entirely deficient of statements of facts as to give the Court no jurisdiction to issue such process, and, further, that the statute (section 6013 of the Revised Codes) is unconstitutional and void, in so far as it authorizes the issuance of process for the arrest of an alleged insolvent. Motion is denied, and plaintiff excepts. Thereupon the plaintiff submitted to the Court the following requests for instructions to the jury." And the third instruction requested by plaintiff and given by the Court states: "In order to recover, the plaintiff must also show that the arrest was malicious,"--and then proceeds to define "malice."

We have quoted thus much from the record because it is material to ascertain, if we can, upon what theory the plaintiff was seeking to recover. It may be conceded that, under the averments of the complaint, he had a right to recover either for false imprisonment, or malicious prosecution, or both. See Wagstaff v. Schippel, 27 Kan. 450. But it is very clear that the ruling of the Court on the motion for a directed verdict was right, if plaintiff was seeking to recover as for malicious prosecution, because, however defective the affidavit for the order of arrest may have been, or however unconstitutional the law authorizing the arrest may be, plaintiff could not recover for malicious prosecution unless the defendant was actuated by legal malice in making the affidavit; and, while a defective affidavit might be regarded as showing want of probable cause, which in turn might be some evidence of malice, yet there was so much evidence in the case tending to show absence of all malice that the Court could not take that question from the jury. On the theory of a recovery for false imprisonment, plaintiff was entitled to a directed verdict, if the affidavit for order of arrest was so defective that it gave the Court no jurisdiction, or if the statute...