Keeler v. Myers

• Decision Date: 05 October 1926
• Citation: 119 Or. 517,249 P. 637
• Parties: KEELER v. MYERS, DISTRICT ATTORNEY, ET AL.
• Court: Oregon Supreme Court

249 P. 637

119 Or. 517

KEELER v. MYERS, DISTRICT ATTORNEY, ET AL.

Supreme Court of Oregon

October 5, 1926

Department 1.

Appeal from Circuit Court, Multnomah County; Robt. Tucker and Geo Rossman, Judges.

Suit by Frank W. Keeler against Stanley Myers, as District Attorney and another. From decree of dismissal, plaintiff appeals. Affirmed.

Martin L. Pipes, of Portland (John M. Pipes, of Portland, on the brief), for appellant.

George Mowry, of Portland (Stanley Myers, Dist. Atty., of Portland on the brief), for respondents.

BURNETT J.

In substance, the matters involved in this case are as follows: There was pending before the grand jury of Multnomah county an investigation to determine whether or not the plaintiff was guilty of dealing in securities, such as bonds of corporations, without having a license therefor; that the defendant Myers, district attorney, was apprehensive that the plaintiff here was about to abscond before an indictment could be framed and returned, and that, with this urge, a deputy corporation commissioner appeared before the district court in Multnomah county and filed an information charging the plaintiff with the commission of the offense above alluded to. The weight of testimony convinces us that it was the identical offense then being investigated by the grand jury. In pursuance of the filing of this information, the magistrate (judge of the district court) issued a warrant for the arrest of the present plaintiff. Near midnight of that day a deputy sheriff serving under the defendant Hurlburt, who is sheriff of Multnomah county, accompanied by the defendant Myers, proceeded to the residence of the plaintiff in an apartment in the city of Portland and arrested him under the warrant which was in the possession of the deputy sheriff at the time. After taking him into custody, the officer proceeded to search the rooms in which the plaintiff was living, and in which he was at the time. He found lying on a dresser in the rooms an unsealed envelope with papers therein. He also found some suitcases in the room which were locked, and he directed the plaintiff to open them so that he could ascertain what was in them, but the plaintiff refused to do so. The deputy sheriff thereupon took the plaintiff, together with the suitcases and the envelopes containing the papers, to the courthouse where, in the presence of the plaintiff and district attorney, he opened the suitcases and found therein what we may generally describe as municipal bonds, corporate securities, and the like, of which the deputy sheriff obtained possession.

After many other proceedings not necessary here to mention, the plaintiff commenced this suit, reciting the transaction substantially as above detailed, by which he seeks to recover possession of the property. In addition to the facts stated already, he complains that the arresting officer demanded and received from him at the courthouse on his arrival there $5,000 in cash as bail to secure his presence before the magistrate, after having refused to telephone to the representative of a surety company, who plaintiff claimed, would have furnished an undertaking for him, and that having deposited the $5,000, he was allowed to go at large, but he contends he was never taken before a magistrate to be admitted to bail, and that nothing has been done toward prosecuting the proceeding begun before the magistrate. He concludes therefrom that the proceeding has been abandoned. He avers in substance that the defendant district attorney will use the papers thus obtained as evidence before the grand jury, upon which to base an accusation of felony against the plaintiff. The essence of his contention is that the proceeding was commenced with the sole intention not of supporting the charge before the magistrate, but of...