Olmsted v. Edson

• Decision Date: 04 February 1904
• Docket Number: 13,196
• Citation: 98 N.W. 415,71 Neb. 17
• Parties: LEWIS C. OLMSTED ET AL. v. ISAAC W. EDSON
• Court: Nebraska Supreme Court

98 N.W. 415

71 Neb. 17

LEWIS C. OLMSTED ET AL. v. ISAAC W. EDSON

No. 13,196

Supreme Court of Nebraska

February 4, 1904

ERROR to the district court for Webster county: ED L. ADAMS, JUDGE. Affirmed.

AFFIRMED.

L. H Blackledge, for plaintiffs in error.

J. M Chaffin, J. R. Mercer, J. S. Gilham and Bernard McNeny contra.

OPINION

BARNES, J.

This was an action to recover damages for an alleged illegal or false imprisonment. The suit was brought in the district court for Webster county, and the allegations of the petition were in substance as follows: That the defendant, Isaac W Edson, was the county judge of Webster county, Nebraska; that the plaintiffs were, and had been for more than thirty years, husband and wife; that they resided in the vicinity of Inavale, and were well known to the defendants, as well as throughout a large part of Webster county; that on July 12, 1902, the defendant Ayers, as plaintiff, filed his petition and commenced his action in the district court for Webster county against the plaintiffs, and one Adelbert I. Walker, as administrator of the estate of Allen T. Ayers, deceased, and caused a summons to be issued therein for the defendants, the plaintiffs herein, only, and caused the said summons to be served on them, the answer day therein being fixed on August 11, 1902; that at the time of the acts complained of, no other summons had been issued in that action, and no appearance or other pleadings of any nature had been filed therein; that the defendant, Ayers, delivered said summons to the sheriff of Webster county for service, and also delivered therewith to the said officer a notice in customary form, stating that on July 15, 1902, the plaintiff in that action would take the depositions of the plaintiffs herein at the office of Fred E. Maurer, in Red Cloud, Webster county, Nebraska, and caused said notice and summons to be served on the plaintiffs, and on the 11th day of July caused a subpoena to be issued by the said Fred E. Maurer, as notary public, and served by the sheriff, commanding the plaintiffs to appear and give their depositions in said action before said Maurer as a notary public; that the plaintiffs appeared before said officer and made known to him that they were, and for many years had been, residents of Webster county, and that they had no present intention of absenting themselves therefrom, either permanently or temporarily; that neither of them was aged, sick or infirm so as to interfere with their being present and giving testimony at the trial of said cause; that no order of the district court or a judge thereof, authorizing or permitting the taking of their depositions, had been asked for or obtained; that the attempt to take their said depositions was not in good faith, but for the purpose of harassing and vexing them; that they were husband and wife, and that they each objected, on that ground, to either of them being required to be sworn or affirmed, or become or testify as witnesses on behalf of the plaintiff in said cause; that they thereupon refused to give their depositions; that the plaintiff Ayers, one of the defendants herein, requested the notary to commit the plaintiffs for contempt, which request was refused; that afterwards, on July 21, 1902, the defendants, Ayers and Edson, agreeing together, and well knowing the facts, maliciously, for the purpose of further harassing the plaintiffs, and illegally compelling them to give their depositions in said cause, caused another notice to be issued and served on them for the purpose of taking their depositions in behalf of said Ayers, in said cause, at the office of the defendant Edson, county judge, who thereupon issued a subpoena requiring the plaintiffs to appear and give their testimony by deposition in conformity with such notice, which subpoena was duly served on the plaintiffs who, in obedience thereto, appeared before said county judge and made known to him substantially the same facts which had been made known to the notary public, and which facts and objections were reduced to writing, sworn to and filed by each of the plaintiffs with the said county judge; that they thereupon again refused, for said reason, to submit or give their depositions before said judge as witnesses on behalf of said Ayers; that thereupon the defendant Edson, on the demand of defendant Ayers, knowingly, maliciously, arbitrarily and oppressively, without right, jurisdiction or authority of law, made and entered an order finding the plaintiffs guilty of contempt in refusing to give their depositions, and committed them to the common jail of the county until they should submit to be sworn or affirmed and give their depositions in said cause as witnesses for the plaintiff therein, which order was under the seal of said court, and a copy thereof was delivered to the sheriff of said county, who was the jailer, and by reason thereof the plaintiffs were committed to the common jail of said county and there confined for the space of 6 days, at the end of which time they were discharged upon the writ of habeas corpus by the judge of the district court for said county because said imprisonment was illegal; that by reason of said imprisonment plaintiffs suffered severe pain, anguish of body and mind, shame, humiliation and disgrace; that they also incurred a great expense, to wit, $ 150 for traveling expenses, attorney's fees and expense in defending said proceedings and procuring...