Kittler v. Kelsch
| Decision Date | 29 December 1927 |
| Docket Number | No. 5196.,5196. |
| Citation | 216 N.W. 898,56 N.D. 227 |
| Parties | KITTLER v. KELSCH. |
| Court | North Dakota Supreme Court |
If a criminal warrant be wrongfully obtained upon sufficient legal proceedings, the civil action for resulting damages would be for malicious prosecution and not for false imprisonment.
The state's attorney is the public prosecutor, and must institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed.
The state's attorneys in this state are quasi judicial officers, and where a state's attorney passes upon the sufficiency of evidence before a justice of the peace or the sufficiency of evidence within his own knowledge, as a basis for a criminal prosecution, he acts in a judicial capacity and is not liable in a civil action for a judicial mistake, or for having process issued to make his decision effective.
Appeal from District Court, Morton County; H. L. Berry, Judge.
Action by Mrs. Anna Kittler against C. F. Kelsch, State's Attorney of Morton County, for malicious prosecution. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
F. O. Hellstrom, of Bismarck, for appellant.
Sullivan, Hanley & Sullivan, of Mandan, for respondent.
On the 25th day of November, 1925, C. F. Kelsch, state's attorney of Morton county, received an anonymous letter charging the plaintiff, Mrs. Anna Kittler, with a felony, and stating:
“If you don't see to it and get her out of town, there is a Women's Club in town that will either lynch or tar and feather her.”
A short time thereafter said state's attorney received a letter purporting to come from the plaintiff, Mrs. Anna Kittler, which refers to the subject-matter of the former letter, and admits the truth of the statements therein charging the plaintiff with the commission of a criminal offense, and signed, “Mrs. Anna Kittler.” On receipt of the last letter, the state's attorney made a complaint before a justice of the peace, a warrant was issued thereon, and the plaintiff was arrested. After an investigation, it appearing that the signature on the second letter was a forgery, the action against the plaintiff was dismissed. Thereafter the plaintiff sued the said state's attorney, C. F. Kelsch, the defendant in this action, for damages, alleging all the facts as stated herein, and further that:
The said defendant “did falsely, fraudulently, maliciously, oppressively, willfully, knowingly, and negligently, and without probable cause make a criminal complaint against the plaintiff, in writing, and affixed his name thereto.”
A copy of the criminal complaint, the warrant, and the sheriff's return on the warrant are made a part of the complaint in this action, all of which are regular in form and are sufficient in substance. The complaint also includes a statement made by the state's attorney after an investigation, and which was manifestly intended to exonerate the plaintiff from the charge made against her in the criminal complaint. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was sustained, and the plaintiff appeals.
[1] In oral argument in this court, the plaintiff's attorney insisted that this action is for false arrest or false imprisonment, and in his brief, after quoting from the case of Watts v. Gerking, 111 Or. 641, 222 P. 318, 228 P. 135, 34 A. L. R. 1489, he states:
“There can be no quarrel with that ruling, but the case at bar is not one of malicious prosecution, it is one of false arrest.”
The allegations of the complaint and the copy of the criminal complaint made by the state's attorney, and the warrant issued thereon show conclusively the action is not for false imprisonment, but for malicious prosecution. In the case of Johnson v. Girdwood, 7 Misc. Rep. 652, 28 N. Y. S. 152, the court said:
Jaggard on Torts, p. 424, states the law as follows:
.”
The defendant, Kelsch, proceeded under the statute, made the necessary and sufficient complaint, and the defendant was arrested on a sufficient warrant, and it follows that there was no false imprisonment. The remaining question is whether the plaintiff's complaint is sufficient as a case of malicious prosecution.
[2] It is the contention of the plaintiff that the defendant, in making the complaint upon which the warrant was issued, acted in a ministerial capacity, and that he is responsible the same as any person who was not an officer.
The general duties of the state's attorney are prescribed in section 3376, C. L. 1913. Subdivision 2 of said section provides:
That he (the state's attorney) must “institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed.”
This section charges the state's attorney with the duty of instituting criminal proceedings for the arrest of any person charged with or reasonably suspected of committing a public offense. He has no choice in the matter; the law makes it his duty and states specifically that he must, and if he fails in his duty he may be removed from office.
[3] Section 10535 provides that when the magistrate before whom the complaint is made is a justice of the peace, before issuing the warrant, the complaint, if made by any person other than the state's attorney of the county, and other evidence taken by such magistrate relating to the offense charged, must be submitted to such state's attorney, and he must examine into the charge, and enter either his approval or disapproval of the issuance of a warrant upon such complaint. If he disapproves no warrant shall be issued, but if he approves the warrant must issue. This section clothes the state's attorney with the judicial authority to decide when the evidence is sufficient and when a person is reasonably suspected of the commission of a public offense. It also contemplates the making of a criminal complaint by the state's attorney and makes a clear distinction between such a complaint and a complaint made by any other person in this, to wit, if the complaint is made by any person other than the state's attorney of the county, it must be submitted to such state's attorney and warrant cannot issue without his approval, but if the complaint is made by the state's attorney who is charged with the duty of instituting criminal proceedings for the arrest of persons charged with, or reasonably suspected of the commission of a public offense, the warrant must issue, for the law has given to the state's attorney the power to say when a warrant shall issue and when it shall not, and when he decides that the evidence is sufficient it is his duty to institute proceedings as provided in section 3376, C. L. 1913, and make the complaint contemplated in section 10535.
Under section 685, C. L. 1913, the state's attorney is subject to removal by the governor for misconduct or malfeasance in office, and subject to removal in a judicial proceeding for misconduct or malfeasance in office, under section 10481.
Under section 9830, he is guilty of a misdemeanor if he willfully fails or refuses to perform the duties of his office according to law, and he is guilty of a misdemeanor when he acts contrary to official duty, under section 10191.
The state's attorney is the legal adviser of the county commissioners. He must when required, and without fee, give his opinion in writing to the county, district, township, and school district officers on matters relating to the duties of their respective offices He must advise irrigation engineers and drain commissioners. He is the legal adviser of the grand jury, when there is a grand jury, and of every county officer in the county.
Under chapter 71, Session Laws 1890, prosecutions are by information filed by the state's...
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Finnell v. Pitts, 8 Div. 133.
... ... acting within their duties exacted by law, and were therefore ... immune from civil action. Kittler v. Kelsch, State's ... Attorney, etc., 56 N.D. 227, 216 N.W. 898, 56 A. L. R ... 1217. See, also, Yaselli v. Goff (C. C. A.) 12 F ... (2d) ... ...
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Imbler v. Pachtman
...304 (1925). 19 Smith v. Parman, 101 Kan. 115, 165 P. 663 (1917); Semmes v. Collins, 120 Miss. 265, 82 So. 145 (1919); Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898 (1927); Watts v. Gerking, 111 Or. 654, 228 P. 135 (1924) (on rehearing). Contra, Leong Yau v. Carden, 23 Haw. 362 20 The immunit......
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...82 So. 145 (Miss.1919); Watts v. Gerking, 111 Or. 641, 228 P. 135 (Or.1924); Yaselli v. Goff, supra, 12 F.2d 396; Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898 (N.D.1927); Pearson v. Reed, 6 Cal.App.2d 277, 44 P.2d 592 (Cal.App.1935). See also Imbler v. Pachtman, supra, 424 U.S. 409, 422, 96......
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...of power because of "the risk of being called to account criminally for official misconduct." Id. at 663–64.In Kittler v. Kelsch , 56 N.D. 227, 216 N.W. 898, 898 (1927), a public prosecutor was sued after he made out a criminal complaint and brought criminal charges based on false informati......