Ray v. Dodd

• Decision Date: 29 June 1908
• Citation: 112 S.W. 2,132 Mo.App. 444
• Parties: CHAS. H. RAY, Appellant, v. THOMAS DODD et al., Respondents
• Court: Kansas Court of Appeals

112 S.W. 2

132 Mo.App. 444

CHAS. H. RAY, Appellant, v. THOMAS DODD et al., Respondents

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

Judgment affirmed.

H. L Shannon and H. A. Tankersley for appellant.

(1) Where there is a want of jurisdiction of either the person or subject-matter, a justice of the peace who commits a party to prison is guilty of false imprisonment; and where a constable assists in effecting such imprisonment, with knowledge of the justice's want of jurisdiction, he is also guilty of false imprisonment. Patzack v. Von Gerichten, 10 Mo.App. 424; Tracy v. Williams, 10 Am. Dec. 102, 4 Conn. 107; Sheldon v. Hill, 33 Mich. 171; Page v. Mitchell, 13 Mich. 63; Glazar v. Hubbard, 80 Am. St. 340, (102 Ky.); Truesdell v. Combs, 33 O St. 186. (2) Acting beyond his jurisdiction will render a magistrate liable. 12 Am. and Eng. Ency. of Law (2 Ed.), p 761; Thompson v. Whipple, 54 Ark. 203; Tracy v. Williams, 4 Conn. 107; Barnes v. Barker, 6 Ill. 405; Sheldon v. Hill, 33 Mich. 171; Percival v. Jones, 2 Johns. Cas. (N. Y.) 49. (3) Want of malice is no defense in an action for false imprisonment. St. Louis v. Karr, 85 Mo.App. 614. (4) Malice and want of probable cause are not necessary ingredients of false imprisonment. Munson v. Rouse, 86 Mo.App. 102; Boeger v. Langenberg, 97 Mo. 396. (5) False imprisonment is an intentional detention of the person of another not authorized by law. McCaskey v. Garrett, 91 Mo.App. 359. (6) Where a misdemeanor is committed in one township, and the prosecution of the accused is commenced before a justice of the peace of another township, the proceeding is without jurisdiction. Session Laws of 1907, pp. 245, 246, S. B. 167; Hansberger v. Railroad, 43 Mo. 196; Manuel v. Railroad, 19 Mo.App. 631; Vaughn v. Railroad, 17 Mo.App. 4; Iba v. Railroad, 45 Mo. 469. (7) Where an amendment will not change the cause of action, and justice will be promoted by its allowance, it is an abuse of the trial court's discretion to refuse it. Anderson v. Hance, 49 Mo. 159; Carr v. Moss, 87 Mo. 447; Waverly Timber & Iron Co. v. Cooperage Co., 112 Mo. 383; Simon v. Ryan, 101 Mo.App. 16.

T. C. Tadlock, for respondents, filed argument.

OPINION

BROADDUS, P. J.

This is a suit for false imprisonment. The allegations of the petition in substance are, that the defendant Thomas Dodd a justice of the peace for Preston township, Jasper county, and I. Y. Byers of said township unlawfully combined together for the purpose of depriving plaintiff of his liberty, and that in pursuance of such unlawful combination the said Dodd on the 23d day of August, 1907 issued a certain commitment and delivered the same to the defendant Byers. The commitment omitting caption is as follows:

"Whereas, complaint has been made before me, a justice of the peace of said county, upon the oath of Fannie Ray, that Chas. H. Ray late of the county of Jasper and State of Missouri, did on the 16th day of August, 1907, commit an assault and battery upon Fannie Ray, and

"Whereas the said Chas. H. Ray was brought before me upon a warrant duly issued upon the information of H. L. Bright, assistant prosecuting attorney, and has been examined by me on such charge and required to give a bail in the sum of $ 200 for his appearance before the circuit court of said county, on the first day of the next term thereof, which requisition he has failed to comply with.

"You are therefore commanded to receive the said Chas. H. Ray into your custody in the jail of the county aforesaid, there to remain until he be discharged by due course of law."

The petition recites that the commitment was delivered to the defendant Byers who arrested plaintiff and delivered him to the jailor of the county who put him in prison in the jail. And it is further alleged that plaintiff had complied with the said requisition and had given the necessary bond with good and sufficient securities which had been approved by the defendant Dodd. The defendants pleaded justification in that, they were public officials and acting within the scope of lawful authority.

The facts brought out in the trial were; that plaintiff had been charged by his wife Fannie with an assault and battery upon her person, and that she made affidavit to that effect and that a warrant was duly issued by defendant Dodd for his arrest, which was executed by defendant Byers who brought him before the justice where he was tried and found guilty of the charge and his punishment assessed at a fine of ten dollars; that he appealed from the judgment of the justice to the circuit court and gave a good and sufficient bond for appearance at such court which was approved by defendant Dodd; and that soon thereafter the defendant Dodd issued the said commitment and delivered the same to the defendant Byers who arrested plaintiff and delivered him to the jailor of the county who placed him in jail, where he remained a few minutes when he was released at the suggestion of his attorney on the ground that he had not been surrendered into the hands of the officer by his...