Oleson v. Pincock
| Decision Date | 10 November 1926 |
| Docket Number | 4453 |
| Citation | 251 P. 23,68 Utah 507 |
| Court | Utah Supreme Court |
| Parties | OLESON v. PINCOCK et al |
Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.
Action by D. L. Oleson against R. D. Pincock and others. From a judgment of dismissal, plaintiff appeals.
REVERSED and remanded, with directions.
D. L Oleson, of Salt Lake City, in pro. per.
A. G Horn, of Ogden, for respondents.
The plaintiff brought this action in the district court of Weber county to recover damages for an alleged false imprisonment. In the complaint it is alleged that the defendants forcibly and unlawfully deprived plaintiff of his liberty The complaint thus clearly states a cause of action. In 19 Cyc. 323, it is said: "Unlawful detention by actual force is unquestionably sufficient to make out a cause of action." It is therefore unnecessary for us to refer to the sufficiency of the complaint further.
The defendants, in their answer, pleaded justification. The plaintiff interposed a demurrer to the plea of justification. The district court overruled the demurrer, and the plaintiff then filed a reply to the answer, admitting certain averments and denying others. Upon the filing of the reply, the defendants moved for judgment on the pleadings. The district court granted the motion, and judgment dismissing the action was duly entered, from which plaintiff appeals.
Plaintiff insists that the court erred in overruling his demurrer, and further erred in granting the motion for judgment on the pleadings. We are met at the threshold of this appeal with the contention on the part of defendants that plaintiff's assignments of error are not reviewable, for the reason that he failed to except to the rulings of the court in the particulars before stated. There is no merit to this contention. Comp. Laws Utah 1917, § 6966, provides:
"The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading striking out a pleading or a portion thereof, refusing a continuance; an order made upon ex parte application; and an order or decision made in the absence of a party--are deemed to have been excepted to."
In view of the express language of the section referred to, plaintiff was not required to note an exception. The decision on the motion for judgment on the pleadings was a complete disposition of the case, and hence no exception was required under the statute.
The plaintiff's assignment that the court erred in overruling his demurrer to defendants' answer is without merit. The averments in the answer, although defective and uncertain in a number of particulars, as is hereinafter more particularly pointed out, were nevertheless sufficient to withstand a general demurrer.
The only real questions in the case arise upon the ruling of the district court in granting the motion for judgment on the pleadings. The defendants, in their plea of justification averred "that on the 3rd day of April, 1924, said plaintiff did willfully and unlawfully drive and operate an automobile on the Riverside road, a public highway, at a speed in excess of 30 miles per hour, and that, while driving so, he was observed by the defendants Steele and Mohlman, who then and there placed said plaintiff under arrest, and brought him to the county courthouse at Ogden City." The plaintiff admitted the words not italicized, but denied all of the words that are in italics. The plaintiff thus denied the arrest. The plaintiff contends that, in view of the denial contained in his pleadings, it was incumbent on the defendants to prove by proper evidence that the restraint of plaintiff was authorized by law, and that, in the absence of such proof, the court erred in entering judgment on the pleadings. In defendants' answer it is made to appear that a warrant for plaintiff's arrest was not issued or served until some considerable time had elapsed after he was restrained of his liberty. By considerable time, we mean several hours. Plaintiff therefore vigorously insists that, in view that it was made to appear that the alleged arrest was made without a warrant, and that it was for an offense other than a felony, or for a breach of the peace, the arrest was unlawful. He insists that under the common law an arrest without a warrant could only be made for a breach of the peace. No doubt at common law an arrest for a misdemeanor could only be made without a warrant for a breach of the peace, and this only when the offense was committed in the presence of the person making the arrest. Plaintiff contends that the common law upon that subject is the law of this jurisdiction. We are of the opinion, however, that with regard to that plaintiff is clearly in error. Our statute (Comp. Laws Utah 1917, § 8714), among other things, provides that an officer may arrest a person "without a warrant * * * for a public offense committed or attempted in his presence." It then provides for arrest for felonies, not material here. The term public offense, in view of other provisions in the statute, necessarily includes every public offense constituting a misdemeanor. Any other construction would leave the statute without any force whatever, since arrest for breaches of the peace committed in the presence of an officer, as we have seen, can be made under the common law, and, in view that the common law, is in force in this state where not otherwise provided, it required no statutory enactment to make arrests for breaches of the peace committed in the presence of the officers legal. The statute is, however, broader than the common law since it provides that one may be arrested for any public offense if committed or attempted in the presence of the officer. Plaintiff's contention that an arrest without a warrant can only be made for breaches of the peace committed in the presence of the officer must therefore fail. The question, however, still remains, Is it made to appeal from the pleadings that the arrest of the plaintiff was one authorized by law? It is insisted that, notwithstanding plaintiff's denial of the arrest, he nevertheless was lawfully restrained of his liberty. In this connection it should be stated that the defendants, in their answer, averred that, after plaintiff was arrested as hereinbefore stated, a complaint was duly filed in a justice's court, and a warrant issued and served; that plaintiff was tried and convicted in the justice's court, from which conviction he appealed to the district court of Weber county; that he was again charged with the same offense in the district court, and that he there pleaded guilty to the charge, and that a fine was imposed by said court, which plaintiff paid before bringing the action for false imprisonment. The plaintiff admitted the foregoing averments, and the defendants now insist that, by reason of plaintiff's admission, he waived the right to recover damages for the alleged false imprisonment. Upon the other hand, plaintiff...
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State v. Trane, 20010068.
...93 P.2d 455, 460 (1939). The term "public offense" under section 77-7-2(1) generally includes misdemeanors. Oleson v. Pincock, 68 Utah 507, 511-12, 251 P. 23, 24-25 (1926). Accordingly, the officers had probable cause and were authorized to arrest Trane if Trane committed an offense in thei......
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...Court upheld a warrantless arrest where the officers had sufficient time to obtain an arrest warrant). See, generally, Oleson v. Pincock (1926), 68 Utah 507, 251 P. 23.4 The original arrest in the instant case was made on the basis of substantial evidence tending to prove pandering in viola......
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