Ludwig v. Ellis

• Decision Date: 17 September 1912
• Citation: 22 Idaho 475,126 P. 769
• Parties: GEORGE H. LUDWIG, Appellant, v. JOHN ELLIS, Sheriff of Bannock County et al., Respondents
• Court: Idaho Supreme Court

126 P. 769

22 Idaho 475

GEORGE H. LUDWIG, Appellant, v. JOHN ELLIS, Sheriff of Bannock County et al., Respondents

Supreme Court of Idaho

September 17, 1912

NONSUIT-GROUNDS.

(Syllabus by the court.)

1. Sec 4354, Rev. Codes, specifies the grounds upon which an action may be dismissed or a judgment of nonsuit entered, and the insufficiency of the complaint to state a cause of action is not one of the grounds specified in such statute.

2. The insufficiency of the allegations of a complaint cannot be urged upon the appeal where it appears from the record that the defect in the complaint urged is cured by allegations in the answer covering the matter which it is claimed should have been contained in the complaint.

3. Where the complaint is ambiguous, unintelligible or uncertain, and a demurrer is not filed to said complaint setting forth said grounds, or a demurrer is filed and withdrawn and an answer filed, such defect in the complaint is waived, where the objection is not a material fact, or want of averment of a fact essential to constitute a cause of action, and is purely one of ambiguity or uncertainty.

4. In an action to recover damages for false imprisonment, where it is alleged that the arrest is an unlawful violation of the personal liberty of another, and the evidence is conflicting it is error for the trial court to withdraw said cause from the jury and sustain a motion for a nonsuit.

5. In an action to recover damages for false imprisonment, where the evidence shows without conflict that the officer was advised at the time of the arrest that such person was not the person named in the warrant, and was advised and informed by persons who were acquainted with the person arrested that such person was not the person named in the warrant, and was not at the place where the crime was committed, and there is no evidence showing that the officer had any knowledge of any facts or circumstances or had any description which in any way pointed to the appellant as the person named in the warrant, it is error for the trial court to withdraw the case from the jury and sustain a motion for a nonsuit, as the question of illegal arrest, under the facts, was a question for the jury.

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

An action for the recovery of damages for false imprisonment. Judgment of nonsuit. Reversed.

Judgment reversed. Costs awarded to appellant.

Hansbrough & Gagon, for Appellant.

If a complaint fails to set forth material facts so that no cause of action is stated, but the answer avers such facts, the omission in the complaint becomes immaterial, and the defect therein is cured by answer. (1 Sutherland on Pleading, sec 361; State v. Thum, 6 Idaho 323, 55 P. 858; Ferrera v. Parke, 19 Ore. 141, 23 P. 883; Shively v. Semi-Tropic Land & Water Co., 99 Cal. 259, 33 P. 848; Burns v. Cushing, 96 Cal. 669, 31 P. 1124; Gwillim v. First Nat. Bank, 13 Colo. 278, 22 P. 458; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 42 P. 860, 43 P. 713; Drake v. Sworts, 24 Ore. 198, 33 P. 563; Limberg v. Higgenbotham, 11 Colo. 156, 17 P. 481.)

False imprisonment is the unlawful violation of the personal liberty of another. Neither malice nor want of probable cause is an element of the right to recover for false imprisonment. (3 Sutherland on Pleading, sec. 3839; Kroeger v. Passmore, 36 Mont. 504, 93 P. 805, 14 L. R. A., N. S., 988.)

Clark & Budge, for Respondents.

It is not contended that the act of Sterrett, the deputy, was committed in the execution of any duty of his office. On the contrary, it is specifically alleged that appellant's arrest, detention and imprisonment were all "without any right or authority." The complaint does not state a cause of action, (People v. Beach, 49 Colo. 516, 113 P. 513; People v. Pacific Surety Co. (Colo.), 109 P. 961.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was commenced by the appellant against the respondent for the purpose of recovering the sum of $ 5,000 damages for false imprisonment, and $ 260 special damages, sustained on October 24, 1910. Answer to the complaint was made by the defendant, putting in issue the allegations of the complaint and alleging the facts with reference to the arrest and imprisonment of the plaintiff. A jury was called to try the case, and at the conclusion of the evidence of the plaintiff a motion was made by the defendant for a nonsuit upon two grounds: First, that the evidence failed to establish a case sufficient to submit to the jury; second, that the complaint does not state a cause of action. This motion was sustained, and a judgment of dismissal of the cause was entered. This appeal is from the judgment thus rendered.

The allegations of the complaint are in substance as follows: That John Ellis is sheriff of Bannock county, state of Idaho, and that W. F. Kasiska, J. B. Bistline and E. C. White are sureties upon his official bond; that a copy of the bond is attached to the complaint; that on or about the 30th day of April, 1910, in the state of Wyoming, the defendant, John Ellis, by himself and his deputies and attaches of his office, "did then and there by force, overpower, and restrain of his liberty this plaintiff, and then and there imprison him the said plaintiff, by restraining him of his liberty, and that the said John Ellis, sheriff as aforesaid, by his deputies as aforesaid, then forcibly took and conveyed said plaintiff from the state of Wyoming to Bannock county, in the state of Idaho, and there forcibly placed the said plaintiff under arrest, and took plaintiff to the city of Pocatello in said Bannock county, Idaho, and then and there imprisoned the said plaintiff and detained him and restrained him of his liberty in all for the space of nine days without probable cause and without any right or authority so to do, and against the will of the plaintiff, whereby the plaintiff was humiliated and disgraced and injured in his credit and was prevented from attending to his business during that time, to his damage in the sum of five thousand ($ 5,000.00) dollars."

The complaint also alleges special damages in the sum of $ 260 for loss of time and upon contracts, which the plaintiff was prevented from keeping and performing by reason of such imprisonment.

The answer, after denying the material allegations of the complaint, alleges that on or about the 5th day of April, 1910, a complaint was filed in the justice court of Pocatello by James S. Campbell against one George Ludwig, charging Ludwig with the crime of embezzlement, and that on said day a warrant was issued out of the justice court directed to the sheriff of Bannock county, requiring him to arrest Ludwig to answer said charge; that such warrant was delivered to S. R. Sterrett, deputy sheriff of Bannock County, who was informed that Ludwig was in the "Jackson Hole" country, Wyoming; that Sterrett proceeded to Wyoming and to the home of the plaintiff, and finding plaintiff, whose name and description answered the description of George Ludwig for whom he had a warrant, and for whom he had been in search, and who was unknown to the defendant Ellis or his deputies, said Sterrett read to Ludwig the warrant which he had for him, and that the plaintiff denied that he was guilty of the offense, but that he volunteered to accompany Sterrett to Pocatello, Bannock county, for the purpose of satisfying Sterrett that he was not the person wanted, and that the plaintiff without force or compulsion or coercion accompanied the sheriff and without being placed under arrest. It is also alleged that the warrant of arrest was shown to the plaintiff about the 25th of April, 1910, and that the plaintiff was in the company of the sheriff for about two and one-half days in coming from Wyoming to the city of Pocatello, and that on the fourth day from the time plaintiff and said deputy sheriff left Wyoming it was established to the satisfaction of the justice court that the plaintiff was not the person named in said criminal complaint, and that the plaintiff was not under arrest or restraint, either in Wyoming or at any time after leaving Wyoming, until his appearance in the justice court, but that plaintiff accompanied the deputy sheriff of his own free will, and was at liberty to go and come as he pleased while in the city of Pocatello.

We shall first consider the second ground assigned, and upon which such motion was sustained. The record shows that a demurrer was filed to the complaint in the district court, and that such demurrer was withdrawn and an answer thereafter filed.

Sec. 4354, Rev. Codes, provides: "An action may be dismissed, or a judgment of nonsuit entered, in the following cases: . . . . ," and the cases enumerated do not cover the objection that the complaint does not state facts which constitute a cause of action. In other words, the insufficiency of the complaint is not a ground upon which a motion for a nonsuit may be based.

There is another reason why the insufficiency of the complaint cannot be urged upon this appeal, and that is, that the alleged defect in the complaint urged...