Lueck v. Heisler

• Decision Date: 01 May 1894
• Parties: LUECK v. HEISLER ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 644

58 N.W. 1101

LUECK

v.HEISLER ET AL.

Supreme Court of Wisconsin.

May 1, 1894.

Appeal from circuit court, Waushara county; John Goodland, Judge.

Action by Gustave Lueck against Fred Heisler and H. A. Schluckebier for false imprisonment and malicious prosecution. From a judgment for plaintiff, defendants appeal. Affirmed.

The action is for false imprisonment, and for malicious prosecution. The plaintiff owed a small debt, for goods, to a firm of which the defendant Heisler was a member. On October 25, 1892, Heisler made a complaint to a justice of the peace, whereby he intended and attempted to charge the plaintiff with the crime of having obtained such goods by means of false pretenses. The justice issued a warrant upon such complaint, which he placed in the hands of the defendant Schluckebier, who was a deputy sheriff, to be served. Schluckebier arrested the plaintiff, and, after a short detention, let him go, because he was advised by a lawyer that his warrant was defective. That part of the complaint and warrant which sets out the offense complained of is as follows: “That G. Lueck did, on the third day of October, A. D. 1892, at the city of Beaver Dam, in said county, did unlawfully, knowingly and designedly and falsely represented himself, to the said firm to be responsible, with false pretense aforesaid, the said G. Lueck did then and there unlawfully, knowingly and designedly obtain from said Heisler & Deniger, goods and merchandise of the value of eighteen 45-100 ($18.45) dollars of property of said Heisler & Deniger with the intent then and there to defraud; whereas in truth and in fact, said G. Lueck is not responsible, as said Fred Heisler then and there well knew, and prayed that the said G. Lueck might be arrested and dealt with according to law.” The warrant is still in the hands of the deputy sheriff, and has not been returned to the justice. On the part of the plaintiff, it was claimed that the whole criminal proceeding was, on the part of Heisler, an attempt to collect his debt by the use of the criminal process, and that the defendant Schluckebier knew of that purpose, and lent himself to aid and abet it. There was testimony by the plaintiff and another to the effect that Schluckebier, at the time when he made the arrest, had Heisler's bill of the goods with him, and informed the plaintiff how much it would cost to pay up and settle. The defendants offered to prove that the action was being prosecuted by champertous agreement between the plaintiff and his attorneys. The offer was to prove champertous agreement by cross-examination of the plaintiff, and was made before the plaintiff's case had been rested. An objection to this offer was sustained. There was verdict and judgment for plaintiff against both defendants, from which they both appeal.J. J. Dick, for appellants.

Niskern & Engelbracht, for respondent.

NEWMAN, J. (after stating the facts).

Process fair and regular on its face protects the officer who serves it. The converse also is true. Process which is not fair and regular upon its face does not protect the officer who serves it. To be fair and regular upon its face, process must at least contain, in some form, however informal and abbreviated, substantially an accusation of a criminal offense. It must state an offense, at least colorably, or it is void. Hall v. Rogers, 2 Blackf. 429;Baldwin v. Hamilton, 3 Wis. 747;Gelzenleuchter v. Niemeyer, 64 Wis. 316, 25 N. W. 442;Frazier v. Turner, 76 Wis. 562, 45 N. W. 411. Certainly, then, it cannot be deemed to be fair and regular upon its face if, upon its face, it appears affirmatively that the facts alleged do not constitute an offense. In either case, it fails to show a subject-matter within the jurisdiction of the magistrate. One element necessary to constitute the offense of obtaining goods by false pretenses is that the seller be deceived by the pretense, and part with the goods on the faith of it. The warrant on which the plaintiff was arrested, and the complaint as well, states that the defendant knew at the time the falsity of the pretense alleged. Of course, he did not rely upon its truth. He was not deceived by it. The law under which a process issues is a part of the process. The officer is bound to know what the law is. If his process is bad upon its face, he must take notice of that fact. Grumon v. Raymond, 1 Conn. 40; Lewis v. Avery, 8 Vt. 289;Clayton v. Scott, 45 Vt. 386;Fisher v. Girr, 1 Gray, 1;Ely v. Thompson, 3 A. K. Marsh. 70; Milligan v. Hovey, 3 Biss. 13, Fed. Cas. No. 9,605; Sprague v. Birchard, 1 Wis. 457;Grace v. Mitchell, 31 Wis. 533. So the warrant on which the plaintiff was arrested was not fair upon its face. It showed upon its face that it was issued in a case in which the magistrate had no authority to issue it, and the officer was bound to know its infirmity. He is not protected by the warrant. This makes a clear case for false imprisonment against the defendant Schluckebier; and, being unprotected by his warrant, he may be liable for malicious prosecution, also, upon the same facts, if it also appears that he was a party to a malicious prosecution of the plaintiff by the defendant Heisler, for the two causes of action are not incompatible, and may be joined in the same action. 14 Am. & Eng. Enc. Law, 17, and cases cited in note 1.

Whether the defendant Heisler is also liable for false imprisonment may be a question of some doubt. He claims, and the testimony in some aspects seems to support his claim, that he had no agency in causing the arrest, beyond the mere making of the complaint; that he neither advised nor asked that a warrant should be issued or served, much less the defective warrant which was issued and served. There are cases which hold that the person making the complaint is not liable if he state the facts to the magistrate, even if such facts do not authorize the issuance of a warrant. If the magistrate put a wrong construction on such facts, mistaking the law, no one is liable. 7 Am. & Eng Enc. Law, 681, and cases cited in note 1. But it would seem that such immunity should shield only those whose complaint is made in entire good faith, and without any ulterior unlawful purpose. But it is not necessary to inquire, very carefully, whether the defendant Heisler is liable for a false imprisonment. Possibly, his agency in the arrest under the void warrant was not sufficiently direct and proximate to make him liable on that cause of action. However that may be, the evidence was easily sufficient to support against him the action for a malicious prosecution. The evidence fully justified the jury in finding that he originated and inspired the proceeding, that it was all in his interest,...