Peterson v. Merritt

• Decision Date: 17 December 1913
• Citation: 25 Idaho 324,137 P. 526
• Parties: CHRIS PETERSON, Appellant, v. ANDREW MERRITT et al., Respondents
• Court: Idaho Supreme Court

137 P. 526

25 Idaho 324

CHRIS PETERSON, Appellant, v. ANDREW MERRITT et al., Respondents

Supreme Court of Idaho

December 17, 1913

FALSE IMPRISONMENT-SERVICE OF PROCESS-REGULARITY OF PROCESS-JUSTIFICATION BY OFFICER.

1. Under the provisions of sec. 2035, Rev. Codes, a sheriff or other ministerial officer is justified in the execution of all process and orders regular on their face and issued by a court of competent jurisdiction, notwithstanding any defects which may have occurred in the proceedings upon which they were issued.

2. Where a court of competent criminal jurisdiction arraigned a prisoner on an information, charging violation of the prohibitory liquor laws of the state and the defendant pleaded guilty thereto, and the court announced a judgment of fine and imprisonment against the prisoner and made and entered a judgment and caused a remittitur to issue, and thereafter and before the delivery of the remittitur to the officer and upon payment by the defendant of the fine and costs suspended the sentence of imprisonment and ordered the prisoner discharged, and thereafter directed the clerk to issue the remittitur to the sheriff, and the sheriff received the same and served it upon the defendant and arrested him and imprisoned him in the county jail under such commitment and the prisoner was thereafter discharged on writ of habeas corpus and sued the officer for false imprisonment; held that the commitment, being regular on its face and having issued from a court of competent jurisdiction, was a protection and justification to the officer and that such officer is not liable in damages for false imprisonment.

3. Where a sheriff acts under process fair and regular on its face, which is issued from a tribunal having jurisdiction of the person and subject matter, and arrests the person against whom such process has issued and obeys the directions and mandates thereof, he is not liable for false imprisonment even though irregularities were committed or the process was obtained or sued out in the first place wrongfully fraudulently or unlawfully.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robert N. Dunn, Judge.

Action for damages for false imprisonment. Judgment for defendant. Plaintiff appeals. Affirmed.

Judgment affirmed. Costs awarded in favor of respondents.

F. M. Molyneux, for Appellant.

Although a writ is fair on its face, yet as the officer knew facts rendering it void, or could have known by reasonable diligence, or by virtue of his office should have known, having been put on his inquiry, he would be liable, and this is a fact, as to whether or not the sheriff did know or could have known that the writ was void, and such fact should have been submitted to the jury for their determination.

This court has held in the matter of the application of Chris Peterson for a writ of haoeas corpus (19 Idaho 433, 113 P. 729, 33 L. R. A., N. S., 1067), that the commitment under which appellant was taken into custody was void and without authority of law.

"An officer is bound to know the law and to know the jurisdiction of the court whose officer he is. If, therefore, he does an act in obedience to a precept of the court and the court has no jurisdiction of the matter, either because the statute under which the court acts is unconstitutional or there is a want of jurisdiction or any other reason, it would seem that the officer is not protected." (Tellefsen v. Fee, 168 Mass. 188, 60 Am. St. 379, 46 N.E. 562, 45 L. R. A. 481; Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381; Warren v. Kelley, 80 Me. 512, 15 A. 49; Batchelder v. Currier, 45 N.H. 460; Campbell v. Sherman, 35 Wis. 103; Sumner v. Beeler, 50 Ind. 341, 19 Am. Rep. 718; Wise v. Withers, 3 Cranch (U. S.), 331, 2 L.Ed. 457.)

Breck v. Blanchard, 20 N.H. 323, 51 Am. Dec. 222, holds officer liable for levying execution where judgment was paid, but not shown on record, holding him liable on account of knowledge alone, although the execution was fair on its face. (See, also, McDonald v. Wilkey, 13 Ill. 22, 54 Am. Dec. 423.)

An arrest under a void warrant for a false imprisonment affords no justification to a party thereto for any action under it. (Neimitz v. Conard, 22 Ore. 164, 29 P. 548; Frazier v. Turner, 76 Wis. 562, 45 N.W. 411. Other cases cited in note 2, 12 Am. & Eng. Ency. of Law, 744. Also Gelzenleuchter v. Niemeyer, 64 Wis. 316, 54 Am. Rep. 616, 25 N.W. 442.)

E. W. Wheelan, for Respondents.

Sec. 2035, Rev. Codes, was construed by this court in Coombs v. Collins, 6 Idaho 536, 57 P. 310; Pecotte v. Oliver, 2 Idaho 251, 10 P. 302; Roth v. Duvall, 1 Idaho 149; Hallett v. Parrish, 5 Idaho 496, 51 P. 109.

The general rule is that an executive officer is protected from liability for false imprisonment by a warrant which is valid on its face and issues from a court having general jurisdiction of the subject matter. (Savacool v. Boughton, 5 Wend. (N. Y.) 170, 21 Am. Dec. 181; State v. Weed, 21 N.H. 262, 53 Am. Dec. 188; Marks v. Sullivan, 9 Utah 12, 33 P. 224; Trammell v. Town of Russellville, 34 Ark. 105, 36 Am. Rep. 4; Hofschultee v. Doe, 78 F. 436.)

The law does not require the officer "to be wiser than his process." (Richards v. Nye, 5 Ore. 382.) He is not called upon to judge of the regularity of the proceedings of the tribunal which commands the duty. (Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151.) If it is sufficient in point of form and purports to have been issued in a cause or matter over which the tribunal had jurisdiction to issue such process, it is enough. (Brown v. Henderson, 1 Mo. 134.)

All that is required is that it shall be prima facie valid--good upon the face of it. (Atwood v. Atwater, 43 Neb. 147, 61 N.W. 574; State v. McNally, 34 Me. 210, 56 Am. Dec. 650; Clarke v. May, 2 Gray (Mass.), 410, 61 Am. Dec. 470.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted to recover damages for false imprisonment.

Respondent Merritt was sheriff of Bonner county and the Fidelity and Deposit Co. was surety on his official bond. The appellant was taken into custody under process issued out of the district court in and for Bonner county and was held in custody by the respondent as sheriff of the county. The appellant was subsequently released on a writ of habeas corpus sued out in this court. (In re Peterson, 19 Idaho 433, 113 P. 729, 33 L. R. A., N. S., 1067.) Appellant was discharged by the judgment of this court on the ground that he was being unlawfully detained, in that the trial court had exceeded its jurisdiction in ordering the appellant imprisoned after he had complied with a former order and judgment of the trial court.

It appears, as will be seen from an examination of the statement contained in the Peterson case (supra), that Peterson pleaded guilty to the charges contained in two informations filed against him in the district court of Bonner county, wherein he was accused of violation of the local option law which was then in force in Bonner county. The court had pronounced sentence against the defendant in each of those cases; in one that he be imprisoned in the county jail of Bonner county for six months and pay a fine of $ 300 and the costs of the prosecution; in the second case, the sentence directed an imprisonment for six months and a fine of $ 200 and costs. The trial court, however, made an order that in the event the defendant paid the fines and costs, the sentence of imprisonment should be suspended until the further order of the court or judge thereof. The defendant thereupon paid the fines and costs in both cases and was released and discharged from custody. Thereafter and without further notice or proceeding the clerk of the court upon the direction of the court delivered to the sheriff of the county the commitments, and the sheriff thereupon apprehended the defendant therein named, who is appellant here, and held him as a prisoner in the county jail in accordance and conformity with the directions of the judgment and commitment. He thereupon sued out his writ from this court and was discharged thereon. He subsequently commenced the present action to recover damages from the sheriff and his bondsmen for false imprisonment, alleging that he was detained and imprisoned without authority of law.

The only question presented for our consideration in this case is whether or not the process which was delivered to the sheriff and under which he apprehended and imprisoned the appellant constitutes a legal protection and justification for his action.

Section 2035 of the Rev. Codes provides as follows:

"A sheriff, or other ministerial officer, is justified in the execution of, and must execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued."

In Roth v. Duvall, 1 Idaho 149, the territorial supreme court, in considering the duty of the sheriff to execute process and his protection thereunder, said:

"It is well settled that the sheriff cannot refuse to serve process regularly issued to him because in his opinion it is defective or irregular. (Drake on Attachment, sec. 185; also Walker v. Woods, 15 Cal. 66.) We think, therefore that so much of the defendant's answer as undertakes to defend this action by impeaching the regularity of the judgment and execution in the suit of Roth v. Smith is without merit, and should be disregarded. It sets up no fact which constitutes any defense. If the defendant in that suit, Smith, did not choose to attack those proceedings, the sheriff cannot be permitted to do it for him, and however defective they may have been, the latter had nothing to do with the case except to execute...