Murray v. Low

• Decision Date: 12 October 1925
• Docket Number: No. 4640.,4640.
• Citation: 8 F.2d 352
• Parties: MURRAY v. LOW et al.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 352 (1925)

MURRAY v. LOW et al.

No. 4640.

Circuit Court of Appeals, Ninth Circuit.

October 12, 1925.

O'Neill & Irwin, of Klamath Falls, Or., for plaintiff in error.

Horace M. Manning, of Klamath Falls, Or., for defendants in error.

Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge.

The defendants in error were the sheriff of Klamath county, Or., and the sureties on his official bond. The District Court treated this as an action to recover damages for malicious prosecution. We think this characterization of the complaint is correct. It is true that the pleader alleges an improper seizure of plaintiff's goods under a writ of mandamus issued in a proceeding to which plaintiff was not a party, but no damages are charged as the result of this seizure. This portion of the complaint should be treated as setting up matters of inducement explanatory of the more substantial allegations which follow It is averred that plaintiff in error remonstrated with Burt E. Hawkins, a deputy sheriff who undertook to execute the writ of mandamus, and that Hawkins thereupon made oath to an information charging plaintiff in error with assault with a dangerous weapon. It is alleged that subsequently, through the false testimony of Low, the sheriff, and Hawkins, his deputy, the grand jury was induced to return an indictment charging plaintiff in error with this crime. He was subsequently acquitted. The twelfth paragraph of the complaint is as follows: "That, by reason of the grievous acts and conduct inflicted upon the person of this plaintiff, by this plaintiff's being wrongfully and maliciously arrested, imprisoned and prosecuted in the said criminal courts of the state of Oregon, for the crime charged herein, as aforesaid, without any just or probable cause therefor, thereby caused this plaintiff to sustain grievous distress, worry of body and mind and injured and damaged in and to his person in the sum of twenty-five thousand dollars; and that this plaintiff was thereby said prosecution for said crime, in making a defense to the charge in said indictment was caused to incur and expend for counsel fees and court costs the sum of $720.00 by reason thereof to his damage and injury." The prayer is for damages in the sum alleged in the quoted paragraph.

The official bond of Low is attached as an exhibit to the complaint. The defendants obligated themselves therein that Low would "well and faithfully perform the duties of" his office as sheriff. This obligation did not make the sureties responsible for a wrongful arrest by one of the sheriff's deputies. Chandler v. Rutherford, ...