Miskimmons v. Moore

• Citation: 65 P. 1000,10 Wyo. 41
• Parties: MISKIMMONS v. MOORE
• Decision Date: 16 August 1901
• Court: Wyoming Supreme Court

65 P. 1000

10 Wyo. 41

MISKIMMONS v. MOORE

Supreme Court of Wyoming

August 16, 1901

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

John Miskimmons commenced the action against H. Waldo Moore complaining that, without probable cause, and maliciously the defendant had charged the plaintiff before a Justice of the Peace with the crime of compounding a felony, and that he was, in consequence thereof, arrested, and subsequently committed for contempt of court for declining to answer certain questions in a criminal hearing wherein other parties were complained of for obtaining money under false pretences and it was sought to recover damages. The District Court ordered that the plaintiff separately state and number the causes of action contained in the petition, finding that there was more than one cause of action alleged. The plaintiff failing to comply with the order, the case was dismissed by the court. Thereupon, the plaintiff brought error.

Judgment affirmed.

W. R. Stoll, for plaintiff in error.

The test whether a petition contains two causes of action or not is whether it can be separated into two distinct causes, each cause standing by itself being capable of supporting a judgment. It should be apparent that the petition contains two causes of action well pleaded, before holding it to state two causes. (5 Ency. Pl. & Pr., 335, 309-310, 318.) The motion to separately state lies only when there is more than one cause of action stated. (R. S., Sec. 3534; Whittaker's Ann. Code, pp. 98-99; 5 Ency. Pl. & Pr., 719-23.) The allegations in the latter part of the petition state only special facts entitling the plaintiff to special damages, which must be alleged to be recovered. (Chester v. Hill, 66 Cal. 480; Raynor v. Mintzer, 67 Cal. 159; Friend & Terry Lumber Co. v. Miller, id., 464; Handy v. Chatfield, 23 Wend., 35; Hale v. Steuart, 76 Mo. 20.)

Moore & Wellnitz, for defendant in error.

An action for false imprisonment and malicious prosecution cannot be joined in the same action. (Johnson v. Meaghr, 47 P. 861.) An imperfect statement of the different causes of action will not prevent the granting of an order requiring a separate statement and numbering. (Thompson v. Gatlin, 58 F. 536.) The fact that testifying would criminate the plaintiff did not depend upon his arrest on the charge alleged to have been made against him by defendant. The facts existed independent of such arrest, if they existed at all. It is clear that two causes of action are contained in the petition and the motion to separately state and number was proper. (Kearney Stone Works v. McPherson, 5 Wyo., 178.) A complaint for arrest and false imprisonment need not aver the acts complained of to have been done illegally or wrongfully or without authority. (39 Ind. 323; Going v. Dinwiddie, 86 Cal. 633; Painter v. Ives, 4 Neb., 122; Hildebrand v. McCrum, 101 Ind. 63.)

POTTER, CHEIF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHEIF JUSTICE.

In this case, upon motion of the defendant, the District Court ordered the plaintiff, within a certain time designated in the order, to separately state and number the causes of action set out in the petition; the court having determined that the petition contained more than one cause of action. Upon plaintiff's failure to comply with the order, the court dismissed the case without prejudice. Plaintiff brings the case here, alleging error in the order requiring a separate statement and numbering, contending that the petition sets out but one cause of action; while the defendant maintains that it contains two causes of action, one for malicious prosecution and one for false imprisonment.

The petition alleges in substance that on the 31st day of May, 1899, the defendant in error, maliciously intending to injure the plaintiff, etc., and without any probable cause, charged the plaintiff, before a Justice of the Peace of Laramie County, with having feloniously compounded a felony, to-wit: The felony of obtaining money under false pretenses, charged to have been committed by one James Raff and one Clifford Lang; and procured said justice to grant a warrant for plaintiff's arrest upon said charge; that a warrant was issued accordingly, and thereupon plaintiff was arrested and held in the custody of the sheriff for two hours; that he demanded an immediate hearing, which was denied him by the justice, acting under the advice and suggestion of defendant, and a hearing was set for the 9th day of August, 1899; and thereupon, to obtain his liberty, plaintiff was obliged to give and did give bail for his appearance. It is then alleged that on the 3d day of August the defendant procured the discharge of plaintiff upon said charge of having compounded a felony, and the proceeding thereon had wholly terminated.

Then follows several other allegations, which may be briefly summarized as follows: That when the charge aforesaid was preferred against plaintiff criminal complaints were pending before said justice against the said Raff and Lang for the crime of obtaining money under false pretenses, to establish which plaintiff's testimony was necessary; that on the 3d day of August the preliminary hearing on those complaints occurred, and plaintiff, being called as a witness for the State, declined to answer any and all questions touching the matter of the offense charged against Raff and Lang, relying upon the constitutional immunity from giving testimony tending to convict one's self of a crime; and it is alleged that he relied upon that constitutional immunity, and so declined giving any testimony by reason of his having been charged with having compounded the...