Miles v. Wright

• Decision Date: 28 December 1920
• Docket Number: Civil 1860
• Citation: 194 P. 88,22 Ariz. 73
• Parties: J. T. MILES, Sheriff of Pima County, Appellant, v. HELEN WRIGHT and Her Husband, J. R. WRIGHT, Appellees
• Court: Arizona Supreme Court

194 P. 88

22 Ariz. 73

J. T. MILES, Sheriff of Pima County, Appellant, v. HELEN WRIGHT and Her Husband, J. R. WRIGHT, Appellees

Civil No. 1860

Supreme Court of Arizona

December 28, 1920

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr Edwin F. Jones, for Appellant.

Mr Jesse C. Wanslee and Messrs. Sprowls & Downing, for Appellees.

OPINION

ROSS, J.

Plaintiff brought this suit for damages against J. T. Miles as sheriff, and George Holloway as deputy sheriff, of Pima county, and J. G. Montgomery as sheriff of Maricopa county, Arizona, and the Maryland Casualty Company as the bondsman for the two sheriffs, charging the officers with a joint trespass in unlawfully arresting and falsely imprisoning her. The material facts alleged in her complaint are:

"That on the evening of February 28, 1919, and in answer to a telegram announcing the serious illness of plaintiff's mother-in-law, living at Mathis, Texas, plaintiff left the city of Phoenix over the Arizona Eastern Railroad via Maricopa for said Mathis, Texas. That she changed trains at Maricopa, taking an east-bound Southern Pacific train which passed through Maricopa about 10:30 P.M. of the same evening, and secured a berth thereon in a sleeping-car attached to said train, and some time just after midnight, the same being March 1, 1919, and after she had passed through the city of Tucson, Arizona, the said George Holloway came to her berth, awakened her, and placed her under arrest, stating to her that the sheriff of Maricopa county had ordered him to arrest her. That she inquired of him the reason for her arrest, whereupon he stated that she had stolen a large sum of money from a man in Phoenix. She protested her innocence and showed him, the said George Holloway, the telegram calling her to Texas and also her marriage license bearing her true name, but he sneeringly told her that he did not believe that stuff, and that she was the woman he wanted, and that she must prepare to leave the train with him at the next stop. That said defendant, George Holloway, went with her to the ladies' dressing-room on said train and compelled her to take off her nightrobe in his presence and to put on other clothes. That while she was dressing he opened her grip and examined her private effects, some of which were not suitable for strangers to see. That the said plaintiff asked the said defendant, George Holloway, whether or not he had a warrant for her arrest, and he showed her his deputy's badge and told her that was all the authority he needed. That when the train on which she was traveling arrived at the station at Benson, Arizona, the said George Holloway forcibly compelled plaintiff to get off the said train with him, which she did, about 2 o'clock at night of March 1, 1919, where he held her under restraint and arrest for about 12 hours, when he released her and allowed her to proceed on her way to Mathis, Texas. That plaintiff has been informed and believes, and on such information and belief alleges as a fact, that defendant J. G. Montgomery, sheriff of Maricopa county, Arizona, by telephonic communication, directed the sheriff of Pima county to arrest the said plaintiff. That on account of the wrongful arrest and detention of plaintiff by the said defendants, plaintiff was frightened and excited and greatly inconvenienced and suffered great bodily harm, humiliation, and distress; that her nerves were shattered, and she was made ill thereby. That she was wrongfully arrested and restrained by the said deputy sheriff and the other defendants herein, who acted without any warrant; the said deputy sheriff stating that he was a deputy sheriff of Pima county, Arizona, and that he had been ordered to arrest plaintiff."

This complaint was filed August 13, 1919. Defendants Montgomery and his surety, the Maryland Casualty Company, on August 25th, filed their answer consisting of general demurrer and general denial. Defendants Miles and his surety, the Casualty Company, and Holloway, on September 8, 1919, filed an affidavit by their attorney stating, among other things, that the alleged arrest complained of was made, if at all, in the county of Pima, and asked that the case be transferred to Pima county, of which they, Miles and Holloway, were public officers and entitled, as such, to have the case tried in said county. On the same date these defendants filed separate answers and demurrers.

Thereafter the demurrer of defendants Montgomery and his surety company was sustained and plaintiff given time to amend her complaint, which was done. The amendment simply substituted a direct allegation instead of one on "information and belief" against Sheriff Montgomery, and is in the following words:

"That the said J. G. Montgomery, sheriff of Maricopa county, advised and requested the said J. T. Miles, sheriff, and George Holloway, deputy sheriff, to arrest said plaintiff and, in so advising and directing the arrest of said plaintiff, the said J. G. Montgomery, acting as such sheriff, exceeded his authority and acted without a warrant when in fact he had no complaint nor warrant for plaintiff's arrest."

The application of defendants Miles, his surety, and Holloway, to transfer the case to Pima county, was taken up at a later date and denied. The case proceeded to trial before a jury. The jury's verdict was in favor of Montgomery, but against the other defendants, for the sum of $1,800. From the judgment entered thereon sheriff Miles, only, prosecutes this appeal.

It is strenuously contended by defendant Miles that the verified application for a transfer of the case to Pima county had the effect of depriving the court of all power over the case except to make the order of transfer. Whether this is true or not, we think, depends upon the facts of the case as disclosed by the complaint and the application, when examined in connection with the law concerning the venue of suits. The application for transfer is in harmony with the allegations of the complaint as to the official capacity of defendants and the counties of which they are officers. The only additional fact set forth in the application that could in any way affect the venue is that the alleged false imprisonment occurred in Pima county, if at all; this fact not being stated in the complaint.

The general rule, as fixed by the statute, is that "no person shall be sued out of the county in which he resides" (paragraph 394, Civ. Code); but there are a number of exceptions to this rule. One is that --

"Suits against public officers must be brought in the county in which the officer, or one of several officers, holds his office." Subdivision 16, par. 394, supra.

Since the official and private residence of county officers must, under the law, coincide, this provision does not, as to them, change or alter the general rule except when the cause of action is against public officers of different counties, in which event the suit may be brought in either county. If the officers sued are shown by the complaint to be officers of different counties and the facts alleged evidence a joint or several liability, then none of the defendants has a privilege or right to be sued in the county in which he holds his office. Paragraph 396, Civil Code, provides that a transfer may be had upon application, "if the county in which the action is brought be not the proper county as provided in paragraph 394." This presupposes a showing, either from the complaint or application, or both, that the defendant asking the transfer is privileged to be sued in another county than the one where the suit was brought. No such showing being made in this case, the court properly refused to order a transfer of the cause to Pima county. The rule that should control the action of the trial court upon an application for a transfer is well stated by a case cited by defendant. It is:

"Where an application for a change of place of trial is made by a defendant based upon a ground which entitles him to the change as a matter of right, the court to which it is addressed has no discretion except to grant the application. In such cases the court is ousted of jurisdiction to proceed further with the cause than to enter the order of removal." People v. District Court, 30 Colo. 123, 69 P. 597.

In all cases cited by the defendant as supporting his contention, the applicants for a change of place of trial based their right upon a state of facts clearly showing that they were entitled to such change, and in each one of those cases it was very properly ruled that the trial court was without power to do other than order the transfer. When such a showing is made, he cannot rule on demurrers or allow amendments of pleadings, but must leave those questions to be passed upon by the court to which the case properly belongs. Brady v. Times-Mirror, 106 Cal. 56, 39 P. 209; Nolan v. McDuffie, 125 Cal. 334, 58 P. 4; Woods Gold Mining Co. v. Royston, 46 Colo. 191, 103 P. 291; State v. Superior Court, 97 Wash. 358, L.R.A. 1917F, 905, 166 P. 630; South v. French, 40 Cal.App. 28, 180 P. 357.

There is another exception to the general rule permitting defendants to be sued out of the county of their residence that seems to have had in view a state of facts similar to that disclosed in this case. It reads:

"Where the foundation of the suit is a crime, offense or trespass for which a suit in damages may lie, the suit may be brought in the county in which the crime, offense or trespass was committed, or in the county in which the defendant or any of several defendants reside or may be found." Subdivision 10, par. 394.

Texas from which this provision (and in fact most of paragraph 394, supra) is taken, has treated it as applicable to a...