Smith v. Clark
| Decision Date | 07 January 1910 |
| Docket Number | 2063 |
| Citation | 37 Utah 116,106 P. 653 |
| Court | Utah Supreme Court |
| Parties | SMITH v. CLARK et al |
APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.
Action by A. O. Smith, Jr., against H. G. Clark and others.
Judgment for plaintiff. Defendant Barry appeals.
REVERSED AND REMANDED.
W. E Rydalch for appellant.
J. H McDonald for respondent.
This is an action for false imprisonment and malicious prosecution, based upon the following transactions: The plaintiff and Barry had a controversy with respect to the ownership and the right of possession of some adobe brick. A Mr. Stewart, who made the brick from clay belonging to the plaintiff, had agreed to pay plaintiff a royalty. Barry had acquired an interest in the brick, and had taken, without objection, a sufficient number of them to build a house. When he attempted to take several more loads to build an outhouse a dispute arose between him and the plaintiff as to the payment of the royalty. The plaintiff contended that the full amount of the royalty had not been paid, and for bade Barry taking more brick until the royalty was paid. Barry, on the other hand, contended that the royalty had been paid in full, and that the brick which he was about to take belonged to him. The brick were in a public street. The plaintiff, claiming the right to hold them until the royalty was paid, ordered Barry away, swore at him, and threatened to have him arrested if he took them without paying the royalty. Barry thereupon withdrew and departed. Thereafter he went before a justice of the peace, and told him the facts of the controversy. The justice drew a complaint which was entitled in the justice court for Myton Precinct, County of Wasatch, State of Utah, before H. G. Clark, justice of the peace, and was styled "The State of Utah, Plaintiff, v. A. O. Smith, Jr.," and another, as defendants, "Complaint for unlawfully holding the property of another." The unlawful acts alleged were that the defendants a street in Myton. The complaint was signed and verified by Barry, the appellant, and was filed before the justice. The justice issued a warrant of arrest, and delivered it for service to the defendant, Ira Calvert, a special officer appointed by the justice. The warrant recited that a complaint on oath had been made by Barry before the justice "that the offense of detaining property of D. Barry has been committed, and accusing A. O. Smith, Jr.," and another, and commanded the officer to arrest the accused and bring them before the justice. By virtue of it the plaintiff was arrested by such officer and brought before the justice. He filed a motion for a change of venue. The order granting the change recites that the The plaintiff was taken before the justice at Heber, who dismissed the case and discharged the plaintiff. Upon plaintiff's return to Myton, and in the nighttime, he removed the brick from the street, and placed them on a lot claimed to be owned by him. Barry, learning of such fact, again went before the justice of the peace, Clark, and told him of it. He and the justice viewed the premises to ascertain whether the brick had been removed from the street and placed on the lot. Finding such to be the fact, the justice drew another complaint, charging the plaintiff with grand larceny. That complaint is not in the record. It, however, is conceded by both parties that the offense of grand larceny was sufficiently charged in the complaint, and that it was signed by Barry, and was filed before the justice, and that it was induced by plaintiff's acts in removing the brick from the street, and withholding them from Barry. A warrant of arrest was issued by the justice upon that complaint. The plaintiff was arrested on such charge, and again brought before the justice. On the day the case was set for hearing the county attorney failed to appear. The case was therefore dismissed by the justice, and the plaintiff discharged without a hearing.
The complaint in this action is on two counts: The first, for false imprisonment, based on the first proceedings before the justice, wherein the plaintiff was charged with, and arrested for, "unlawfully holding and detaining" property belonging to Barry; the second, for malicious prosecution, based on the second proceedings, wherein the plaintiff was charged with, and arrested for, grand larceny. The action was brought against H. G. Clark, the justice of the peace, H. Calvert, and E. M. Jones, sureties on his official bond, Ira Calvert, the officer who served the warrants, and D. Barry, who made the complaints before the justice. The case was tried to the court and a jury. A verdict was rendered against Clark, the justice, for one hundred dollars on the first cause of action, and one hundred dollars on the second cause of action, and against the defendant Barry for one hundred and fifty dollars on the first cause of action, and for one hundred and fifty dollars on the second cause of action. Judgment was entered accordingly. From that judgment the defendant Barry alone has prosecuted this appeal.
He contends, first, that no sufficient facts are stated in either count to constitute a cause of action, and that the court therefore erred in overruling the demurrer to the complaint. The demurrer filed was a joint demurrer of all the defendants. A good cause of action was stated in the complaint on the first count, against the defendants Clark and Ira Calvert. Though the facts stated in the first count were not sufficient to constitute a cause of action against the appellant, the demurrer, being a joint demurrer, was nevertheless properly overruled as to all of the defendants joining therein. Sufficient facts are stated in the second count to constitute a cause of action against the appellant. This assignment is therefore overruled.
It is further contended that the court erred in charging the jury to the effect that the complaint which was filed before the justice of the peace in the first proceedings, and referred to in the first cause of action, "was not sufficient in law to authorize the issuance of a warrant, nor was the warrant on its face sufficient to protect any person serving the same, so that all persons parties to the issuing, procurement, or service of the said warrant would be liable as trespassers for any damages caused thereby, and all the proceedings relating to this cause [had before the justice, and upon which the first cause of action was based] were void in law from the beginning." We think the charge, as applied to the appellant, was too general and indefinite. It undoubtedly gave the jury the impression that because the appellant made and verified the complaint, in the justice's court, which the jury were told "was not sufficient in law to authorize the issuance of a warrant," and because they were further told "that all the proceedings relating" thereto "were void in law from the beginning," he was a trespasser and rendered himself liable for false imprisonment. The complaint filed before the justice, of course, was insufficient. It stated no public or legal offense known to the law. It only charged that the plaintiff had unlawfully detained and withheld property belonging to the appellant, but not that the plaintiff had committed any crime. The complaint did not authorize the issuance of a warrant. The warrant itself was void upon its face. It commanded the arrest of the plaintiff for "the offense of detaining property," an alleged offense unknown to the law. The justice issuing the warrant, the officer, or any other person arresting the plaintiff thereunder, and all other persons participating in, or directing, the issuance and execution of the warrant were trespassers, and liable for false imprisonment. If the charge had restricted the trespass to the acts of, or the participation in, the issuance and execution of the warrant, or the arrest or imprisonment of the plaintiff, it would not abstractly have been objectionable. It, however, would still have been open to the objection that it was not applicable to the evidence, so far as it was intended to apply to the appellant, for there is no evidence to show that he participated in, or directed, the issuance or the execution of the warrant, or that he participated in, or directed, the arrest or imprisonment of the plaintiff, beyond the mere making of the complaint. By that instruction, however, it was intended to charge a liability for false imprisonment on the part of the appellant because he made and verified a complaint which did not charge a public offense, and which did not authorize the issuance of a warrant, and because he instigated proceedings which "were void in law from the beginning." Counsel for both appellant and respondent have so treated the charge. The latter, in his brief, says that "the appellant swearing to the complaint was sufficient" to make him liable "in the first cause of action." We fear the jury likewise so understood it. At least we think it fairly open to such a construction.
The question whether a complainant, who made a complaint or affidavit before a justice of the peace or commissioner which was insufficient to charge a public or legal...
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