Nemitz v. Conrad

• Decision Date: 29 March 1892
• Citation: 29 P. 548,22 Or. 164
• Parties: NEMITZ v. CONRAD et al.
• Court: Oregon Supreme Court

29 P. 548

22 Or. 164

NEMITZ v. CONRAD et al.

Supreme Court of Oregon

March 29, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action for false imprisonment by Rudolph Nemitz against Peter Conrad and others. Defendants had judgment, and plaintiff appeals. Affirmed.

V.K Strode and B.M. Smith, for appellant.

McGinn Sears & Simon, for respondents.

BEAN J.

This is an action for false imprisonment, brought here by plaintiff on appeal from a judgment of nonsuit entered against him in the court below. The record is in confusion, but from the bill of exceptions, interpreted in the light of the briefs and arguments of counsel, the facts appear to be that on August 22, 1891, defendants Conrad and Schafer commenced an action in a justice court against plaintiff on an account and at the same time filed an affidavit and undertaking in due form for the arrest of plaintiff as an absconding debtor. A warrant of arrest was issued by the justice of the peace and placed in the hands of a deputy-sheriff for service. The plaintiff was arrested, and taken to the office of defendants' attorney, where arrangements were made for bail, and the attorney prepared a bail-bond, and gave it to the officer to be executed by the sureties. The undertaking was afterwards signed by two sureties, but not executed in the manner provided by law, but the officer discharged the plaintiff from arrest. A short time afterwards, the attorney, learning of the action of the officer in discharging the plaintiff, caused another warrant to be issued by the justice, and placed in the hands of the constable for service. Upon this warrant, the plaintiff was again arrested, whether before or after midnight Saturday night does not clearly appear, and placed in jail until the following Monday, when he was taken before the court, and upon giving a proper undertaking was discharged. From this statement it appears that the court issuing the process under which plaintiff was arrested had jurisdiction of the action and of the parties. The affidavit for the warrant set forth the necessary facts to enable it to issue. The proper undertaking was given, and there was a full compliance, so far as this record shows, with all the requirements of the law, to justify the issuing of the process. The arrest was therefore under lawful process, and so long as it remained in force was a complete justification to the defendants. The issuing of the second warrant was, at most, only an irregularity, and until set aside no action will lie for false imprisonment by reason of the arrest thereunder. A void process is no justification for an arrest, but an irregular and voidable one is a complete defense until set aside. "Before an action for false imprisonment under process of court can be maintained," says Mr. Bigelow, "it is necessary that the writ should be set aside, unless it appears to be absolutely void. For, if the process is merely voidable, it is valid until quashed; and hence the arrest must, till then, be legal." Bigelow, Torts, 131; Day v. Bach, 87 N.Y. 56, and authorities cited; Bigelow, Lead.Cas. 280. In this case no application was made to have the process set aside, but plaintiff appeared, and put in bail. Having done so, and by neglecting to move to be discharged, he consented to the process, and waived all irregularities in the manner of its issue. Forster v. Orr, 17 Or. 447, 21 P. 440; Matoon v. Eder, 6 Cal. 57. It is clear, therefore, plaintiff is not entitled to maintain this action on...