McLendon v. State

• Decision Date: 29 April 1893
• Parties: McLENDON, Sheriff, et al. v. STATE, to Use of KENNEDY.
• Court: Tennessee Supreme Court

22 S.W. 200

92 Tenn. 520

McLENDON, Sheriff, et al. v. STATE, to Use of KENNEDY.

Supreme Court of Tennessee.

April 29, 1893

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by the state of Tennessee, for the use of Henry Kennedy against A. J. McLendon, sheriff, and others, sureties on his official bond, for false imprisonment. From a judgment entered on the verdict of a jury in favor of plaintiff defendants appeal. Reversed.

James M. Greer and Malone & Malone, for appellants.

L. T M. Cannada, for appellee.

CALDWELL J.

This is an action of damages for false imprisonment, brought in the name of the state of Tennessee, for the use of Henry Kennedy, against A. J. McLendon, sheriff of Shelby county, and the sureties on his official bond. Trial before court and jury resulted in verdict and judgment in favor of the plaintiff, and against all the defendants, for $500. The defendants have appealed in error, and ask a reversal in this court, upon several grounds.

The principal averments of the declaration are, in substance, that the plaintiff, Henry Kennedy, was confined in the workhouse of Shelby county under a void judgment of the criminal court of that county; that, while so confined, his father sued out a writ of habeas corpus in the circuit court of Shelby county for his release; that the judge of the latter court heard his case upon that writ, adjudged his confinement illegal, and ordered that he be at once discharged; that, in defiance of that action of the circuit court, the defendant A. J. McLendon, sheriff of Shelby county, immediately rearrested him, and returned him to the workhouse, where he was wrongfully and illegally confined for a period of 14 days; that, in so rearresting and confining plaintiff, the sheriff had no authority, but acted under a void order of the judge of the criminal court, made upon the latter's learning of the pendency of the habeas corpus proceeding. It is also averred that defendant A. J. McLendon on a certain day executed his official bond, as sheriff of Shelby county, with his codefendants as sureties thereon, and that the bond was breached by the aforesaid rearrest and confinement of plaintiff, Henry Kennedy, whereby the defendants became liable for damages to the state of Tennessee, for his use, in the sum of $50,000, that being the penalty of the bond. The defendants, after some preliminary steps had been taken, filed a joint plea of not guilty, and the case was tried upon the issue thereby formed.

Though much evidence, both parol and documentary, was introduced for the consideration of the court and jury, the only part of it necessary to be here mentioned is the process under which the alleged wrongful and illegal arrest and confinement were made. That process was but a copy of an order spread upon the minutes of the criminal court. It was in the following words and figures: "In the criminal court of Shelby county, Sept. term, A. D. 1890. Wednesday, Nov. 26, 1890. To A. J. McLendon, Sheriff: You are ordered and directed that after the cause of the detention of Henry Kennedy, now in the workhouse of the county, shall have been inquired into to the entire satisfaction of his honor, L. H. Estes, judge of the circuit court, whatever may be his conclusions as to whether such detention be legal or otherwise, you take the body of said Henry Kennedy, and again deliver him to the superintendent of the Shelby county workhouse, there to be confined, and not to go hence without the further orders of this court. You will in no wise omit," etc. "A true copy from the minutes. Attest: R. S. Capers, Clerk. W. W. Topscott, D. C." On that paper was this indorsement: "Executed on the 6th day of Dec'r, 1890, by arresting the said Henry Kennedy, and placing him in the workhouse as is ordered. This Dec. 6th, 1890. A. J. McLendon, Shff. By L. B. Williams, D. S." The charge of the trial judge with respect to the foregoing order or process was, in effect, that it was void upon its face, that it gave the sheriff no authority for the arrest and confinement complained of, and could therefore afford him no protection in this action. The instruction was correct. The order in question was utterly void upon its face.

First. The judge of the circuit court, acting under due forms of law, as he is presumed and shown in this case to have been, had ample power and jurisdiction to conduct the habeas corpus proceedings, and to discharge the plaintiff, Kennedy, from illegal restraint under a void judgment, as he is here alleged and shown to have done. Code, §§ 3720, 3723; State v. Taxing Dist., 16 Lea, 240; State v. Galloway, 5 Cold. 336; Ex parte Lange, 18 Wall. 163; Ex parte Milligan, 4 Wall. 3; Ex parte Parks, 93 U.S. 18; People v. Liscomb, 60 N.Y. 570. On the other hand, the criminal court was wholly without power and jurisdiction to defeat the result by causing Kennedy to be rearrested and recommitted for the same offense, and under the same void judgment, as was the purpose clearly disclosed by the terms of the order itself. Const. art. 1, § 15. Judged by the facts so disclosed, the order was void upon its face. Being so, it gave the sheriff, who is presumed to have known the law, no authority for his action, and affords him no protection.

Second. "All writs and other process shall run in the name of the state of Tennessee, and bear teste and be signed by the respective clerks." This is the requirement of the constitution, as found in section 12, art. 6, of that instrument. Clearly, the order here in question, if possessed of any virtue at all, was a writ, or other process, within the meaning of the constitution. It was intended to serve the purpose of a writ, or other process, and as such it could have been valid, if so otherwise, only when running in the name of the state of Tennessee. It did not so run, and for that additional reason it was void upon its face. If it ran in any name at all, it was only in the name of the criminal court of Shelby county. In the case of Mayor, etc. v Pearl, 11 Humph. 250, 251, it was held that a distress warrant for the collection of taxes was void because running in the name of the "Corporation of Nashville,"...