Ryburn v. Moore

• Decision Date: 23 November 1888
• Citation: 10 S.W. 393
• Parties: RYBURN <I>v.</I> MOORE.
• Court: Texas Supreme Court

10 S.W. 393

RYBURNv.

MOORE.

Supreme Court of Texas.

November 23, 1888.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

M. B. Templeton, for appellant.

WALKER, J.

This is an action by C. F. Moore against appellant, the sheriff of Ellis county, for false imprisonment. The petition alleges that in June, 1887, in Ellis county, Tex., Ryburn assaulted plaintiff, and with force compelled him to quit his business, and go to jail in Waxahachie, and then and there imprisoned plaintiff, and kept him a prisoner, without any probable cause or lawful authority, for the space of nine days, causing loss of earnings in his business, $60; and "that said imprisonment caused him great suffering, distress, agony, and humiliation, both of mind and body, to his actual damage two thousand dollars." The petition also claimed vindictive damages. The defendant specially excepted to the item of $60, which it was alleged was lost from his failing by the arrest to make his shipments of cattle, in which business he is alleged to have been engaged. Defendant also pleaded general denial, and justified under a capias from Johnson county for the arrest of Charley Moore. The case was tried without a jury, and judgment was rendered for plaintiff for $85.

The first assignment of error complained that the court overruled a motion by defendant to strike out an affidavit filed by plaintiff, of inability to give security for costs filed under article 1438, Rev. St. The ground for the motion was that the notary before whom the affidavit was made was one of the attorneys for the plaintiff. We are referred to no authorities. In Weeks, Attys. at Law, under section 122, it is stated: "In all legal proceedings, and at every stage of a cause, a court scrupulously guards against intrusting the execution of its mandates to persons having any interest in the cause. The law will not tempt those having an interest in any way to abuse its process for the purpose of promoting selfish ends. So a solicitor in a cause has been held disabled from acting as a special master to execute a decree in the cause; nor can an attorney make a writ, and indorse his name upon it as attorney for the plaintiff, and also sign it as justice of the peace." Our courts have suppressed depositions when taken by an attorney in the suit, for the obvious reason that the testimony may receive color from the interested official. The notary is authorized to administer oaths, and to give certificates thereto. Attorneys at law often are appointed to the office. It was proper for the attorney for plaintiff to pepare the affidavit, if required by his client. The statute prescribes its contents. If sworn to before his attorney, as a notary, if false it would be perjury. The attorney, as a witness in a prosecution for perjury or false swearing upon the affidavit, would be a competent witness if called to prove the fact of making the affidavit, and of the affiant's knowledge of its contents. As in no possible way could the defendant be injured by one or another officer taking the affidavit, we cannot see that the court erred in refusing to strike out the affidavit.

The second assignment of error complains of the action of the...