Lane v. Ball

• Decision Date: 10 October 1916
• Citation: 83 Or. 404,160 P. 144
• Parties: LANE v. BALL ET AL.
• Court: Oregon Supreme Court

160 P. 144

83 Or. 404

LANE v. BALL ET AL.

Supreme Court of Oregon

October 10, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Adolphus Lane against W. F. Ball and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

The complaint in this action was filed February 23, 1915, and alleges, in effect, that the defendants E. E. Farrington, C H. Farrington, and C. M. White are, and at all the times stated were, attorneys at law and engaged in the practice of their profession at Portland, Or., and are financially interested in a judgment which they secured in the circuit court of the state of Oregon for Multnomah county in favor of the defendant W. F. Ball and against the plaintiff, Adolphus Lane; that the defendant John B. Coffey is the county clerk of that county and ex officio clerk of that court; "that on or about the 15th day of February, 1913, the said defendants, E. E. Farrington, C. H. Farrington, C. M. White and W. F. Ball, acting jointly and illegally and for the wrongful and unlawful purpose of extorting money from this plaintiff and unlawfully compelling plaintiff, by and through wrongful and unlawful means and methods, to pay over money to said defendant Ball and his said attorneys, and without any order or leave of the above court, or judge thereof, in the premises, did wrongfully, unlawfully, and maliciously solicit, procure, and induce the said defendant John B Coffey, then being and acting as clerk of the said circuit court as aforesaid, unlawfully to issue a warrant for the arrest and imprisonment of the above plaintiff, and that the said John B. Coffey, as clerk of the above circuit court as aforesaid, unlawfully acting under and upon the solicitations, inducements, and advice of his codefendants and in furtherance of the aforesaid unlawful purposes of his codefendants, did, on the 15th day of February, 1913, unlawfully and in violation of the statutes of the state of Oregon, and without any leave or order of the above court or any judge thereof so to do, and in violation of plaintiff's rights in the premises, issue an execution order, directing the sheriff of Multnomah county, Or., to arrest and imprison the above plaintiff, Adolphus Lane, in the county jail of Multnomah county, Or., until he should pay certain sums of money, then claimed to be due to defendant W. F. Ball and his said attorneys, upon a certain judgment of the above court, or be otherwise discharged"; that Coffey wrongfully and unlawfully caused such execution forthwith to be delivered to such sheriff, who pursuant thereto arrested the plaintiff February 15, 1913, and committed him to the jail of that county, where he remained until March 24, 1913, when he was discharged by order of such court, which held that the writ under which he was apprehended and imprisoned was illegal and void, and issued without authority of law, and thereupon canceled such warrant, from which judgment no appeal was taken, and the order has become final; that statements concerning the plaintiff's arrest and imprisonment were published in the press, and became generally known to, and were discussed by, his friends and acquaintances, thereby injuring his credit, reputation, and social and business standing, causing mental strain and anguish, to his damages in the sum of $10,000, for which judgment was demanded. The day the complaint was filed, a summons regular in form was issued and delivered to the sheriff of that county, having noted thereon the following direction, addressed to such officer and subscribed by plaintiff's counsel, as sanctioned in suits in equity. L. O. L. § 398. Omitting the address and signature, the direction reads:

"You will please serve a copy of summons upon all defendants herein, and only one copy of complaint, which is to be served upon defendant C. M. White."

The return of the sheriff shows that he served the summons within that state and county by personally delivering a certified copy thereof to each of the defendants, naming them, and that at the same time and place and in the same manner he also delivered to White a certified copy of the complaint. Ball, E. E. Farrington, C. H. Farrington and Coffey, jointly appearing specially on March 5, 1915, moved to quash the summons and the attempted service thereof as to them, on the ground that no copy of the complaint had been delivered to either. White at the same time, alone appearing specially, moved to quash the summons and the service thereof as to him, for that only one copy of the complaint was served. A second summons was issued March 9, 1915, and served the next day upon Ball, the two Farringtons, and Coffey, to each of whom was delivered a certified copy of the complaint. The court on March 15, 1915, sustained the motions referred to, and quashed the first summons and the service thereof as to each of the defendants. Thereupon a third summons was issued and served March 15, 1915, upon White, to whom was also delivered a certified copy of the complaint. All the defendants except White, jointly appearing specially March 19, 1915, moved to quash the second summons, attempted to be served upon them, for that the return of the first summons did not state that they were, or either of them was, not found, and that when the second summons was issued there was then pending in such court, and undetermined, motions to quash the first summons and the service thereof. White, on March 26, 1915, alone appearing, specially moved to quash the third summons and the service thereof on substantially the same grounds as last stated. The court on March 29, 1915, quashed the second and third summons and the service thereof, and at the same time made an order, permitting the issuance of another summons. Pursuant to such authorization a fourth summons was issued March 30, 1915, and served the same day upon each of the defendants, to whom was also delivered a certified copy of the complaint. On April 9, 1915, Ball and Coffey separately, and the other defendants jointly, demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that the action had not been commenced within the time limited therefor. Each of these demurrers was sustained April 12, 1915. The plaintiff's counsel on the 5th of the next month moved to vacate all the previous rulings made in this cause, and for an order directing each of the defendants to file an answer to the complaint. This motion was denied May 24, 1915, the order reciting the overruling of the demurrers, "and that plaintiff has failed to further plead in this action," and concluding as follows:

"Now, therefore, it is considered and adjudged by the court that defendants go hence without day, and recover of the plaintiff their costs and disbursements herein expended, taxed at $13.65."

From this judgment the plaintiff appeals.

Allan R. Joy, of Portland (Logan & Smith, of Portland, on the brief), for appellant.

C. M. White, of Portland, for respondents.

MOORE, C.J. (after stating the facts as above).

It will be remembered the complaint charges that the defendants, acting jointly and illegally and for the wrongful and unlawful purpose of extorting money from the plaintiff by wrongful means, caused an execution to be issued, directing the sheriff to arrest and imprison the plaintiff in the county jail until he should pay Ball and his attorneys, defendants herein, the sum due on the judgment, and that pursuant to such writ the plaintiff was arrested February 15, 1913, and so imprisoned until the 24th of the next month, when he was discharged by order of the circuit court of Multnomah county, Or., which judgment had become final. The initiatory pleading, however, does not aver a want of probable cause. The plaintiff could not maintain an action for false imprisonment until he was discharged from the alleged illegal restraint, and an order to that effect having been made March 24, 1913, the statute of limitations began to run on that date against his right to redress for the injury of which he complains. This being so, it becomes important to consider some clauses of the statute regulating the proceedings in a case of this kind. "An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract," must be commenced within two years from the time the cause arose. L. O. L. § 8. "An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this title, when the complaint is filed, and the summons delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants or one of them usually or last resided." Id. § 15. It will be kept in mind that the complaint herein was filed February 23, 1915, on which day the summons was undertaken to be served. Two years, therefore, had not elapsed when this action was commenced.

Though the demurrers interposed assign two grounds, such written objections to the initiatory pleading were evidently upheld on the assumption that the complaint did not state facts sufficient to constitute a cause of action, for the order dismissing the action, stated that after the demurrers were sustained, the plaintiff failed further to plead. The primary inquiry, therefore, is whether or not the complaint is sufficient when its averments are directly challenged at the proper time and in a formal manner. If the gravamen of the action is malicious prosecution, it is quite probable the complaint is insufficient, for in an action of that kind the averment of a want of probable cause, in respect to the alleged illegal restraint, seems...