Smith v. Lewis
| Decision Date | 04 October 1983 |
| Docket Number | No. WD,WD |
| Citation | 669 S.W.2d 558 |
| Parties | Katie Lee SMITH, Appellant, v. J. Joseph LEWIS, County Director, Division of Family Services, et al., Respondents. 34058. |
| Court | Missouri Court of Appeals |
Arthur A. Benson, II, Susan Goering, Kansas City, for appellant.
Russell D. Jacobson, Kansas City, Legal Counsel, County Counselor's Office, for James Doe & Nancy Roe and Jackson County Prosecuting Attorney.
Scott A. Woodruff, Asst. Atty. Gen., Jefferson City, for respondent J. Joseph Lewis.
Jaci L. Morgan, Kansas City, Legal Counsel, Court Administrator's Office, for Austin Van Buskirk.
Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.
This case presents the issue of whether a petition filed by appellant Katie Lee Smith for false imprisonment states a cause of action sufficient to withstand a motion to dismiss. The trial court held it did not and ordered the cause dismissed as to all defendants. We reverse and remand the case for further proceedings.
Certain facts were conceded to be undisputed and other facts are assumed to be true for purposes of this opinion under principles applicable to review of a ruling by the trial court on a motion to dismiss for failure to state a claim. Concerned Parents v. Caruthersville School Dist. 18, 548 S.W.2d 554, 558 (Mo. banc 1977).
On July 10, 1981, at the instigation of the Missouri Division of Family Services by formal complaint, a warrant issued out of the associate circuit division of the Circuit Court of Jackson County for the arrest of Smith. The charge was welfare fraud. Thereafter, Smith surrendered, entered a plea of guilty and was sentenced. The date of sentencing was July 30, 1981.
On November 17, 1981, Smith was arrested at her place of employment in Johnson County, Kansas under the purported authority of the same warrant which had issued under the original charge the previous July. For reasons and under circumstances which Smith contends she has not yet been able to discover, the disposition of the charge by her guilty plea and sentence did not result in recall or cancellation of the warrant, the consequence of which was her unlawful arrest by Johnson County authorities. Smith was taken to the Johnson County jail, she was extradited to Missouri and was released only after posting bond. Smith's brief suggests, and respondents do not deny, that the mistake was later discovered and the case was dismissed. The source of the November arrest as being the July warrant is confirmed by the copy of the warrant appearing in the record on appeal. Quite obviously, the warrant was functus officio when executed.
Defendants named in Smith's petition are J. Joseph Lewis, Jackson County Director of the Division of Family Services, Austin Van Buskirk, Jackson County Director of the Department of Judicial Records and various fictitious named persons who are employees of the Division of Family Services, the Department of Judicial Records and the Jackson County Prosecuting Attorney. Service of process in the case was accomplished only on defendants Lewis and Van Buskirk.
Additional allegations of the petition significant in disposition of certain aspects of this appeal are as follows:
Motions to dismiss the petition were filed on behalf of Van Buskirk, Lewis and the "Prosecuting Attorney of Jackson County." The motions were sustained and the petition was dismissed. The content of the order suggests and the parties in their briefs assume the cause was dismissed in its entirety, not only as to the defendants Van Buskirk and Lewis who were served with process, but also as to the defendants designated only by fictitious names.
In her first point, appellant complains that the trial court erred in dismissing the case as to defendants shown only by fictitious names who, of necessity, had not been served with process. The defendants so designated were identified only as employees of the three public offices, prosecuting attorney, family services and court administrator. Appellant contends she cannot learn the true names of the persons in these three offices responsible for her arrest until she is provided discovery in the case and that the dismissal order will frustrate that discovery process.
The case as to defendant employees in the office of the prosecuting attorney differs somewhat in a procedural context and will be considered first. The record from the trial court shows no service or attempted service upon any agent or employee of the Prosecuting Attorney of Jackson County, the prosecutor himself being not named as a party. The motion to dismiss filed in the trial court, however was indicated to have been on behalf of the Prosecuting Attorney of Jackson County, Missouri. Upon inquiry at argument here, counsel indicated he was appearing on behalf of that office and interested employees.
Appellant's complaint that the trial court erred in dismissing her petition as to James Doe and Nancy Roe, Jackson County Prosecuting Attorney's Office, is valid. Counsel who presented the motion to the trial court actually represented no party before the court in the case and therefore had no standing to seek or obtain any relief. The same deficiency vitiates the briefing and argument from the same source on this appeal. There simply is no entity "Office of the Prosecuting Attorney" before the court and no real person associated with the office who stands to suffer any consequence by reason of maintenance of the action in its present form. The order of dismissal affecting employees of the prosecuting attorney designated by fictitious names was in error for want of interest in the litigation by the movant.
As to employees of the Division of Family Services and the Court Administrator who were similarly identified by fictitious names, attorneys purporting to appear for these unknown parties were in a different position because they acquired standing through representation of Lewis and Van Buskirk, the officials in charge of the respective offices. For similar reasons, however, the order of dismissal as to these unknown defendants was also in error. We first of all note that the dismissal of defendants, employees of the court administrator, shown only by fictitious names was in error because no relief on their behalf was sought. Counsel appearing for Van Buskirk moved only for dismissal as to him. Apart from this, the dismissal of the case as to all fictitious named defendants in the offices of Lewis and Van Buskirk was in error because these unknown defendants do not at this time purport to be any identifiable persons, there has been no service of process or entry of appearance on their behalf, and hence, no issue ripe for adjudication. Whether or not the petition states a cause of action as to defendants who are not before the court presents no cognizable justiciable question.
The real question in the case to be addressed, if at all, at some future date is illustrated by Maddux v. Gardner, 239 Mo.App. 289, 192 S.W.2d 14 (1945) cited by appellant. In Maddux, suit for wrongful death was brought against the Chicago and Alton Railroad, John Doe, the engineer of the train which struck the deceased, and Richard Roe, the fireman. The petition was later sought to be amended to substitute the true name of the engineer when it became known to plaintiff. The statute of limitations had run when the substitution was attempted but not when the action had been commenced. The issue was whether the substitution constituted a new cause of action barred by the statute or a variation on the demand already at issue under the original petition. The court held the action commenced against "John Doe," the engineer, because the allegations of the time and place of the occurrence and the description of the train adequately informed the defendants at the outset who was the real person conditionally designated by the fictitious name.
Without expressing any opinion as to the adequacy of the "John Doe" descriptions in the present case, we conclude that any issues as to defendants presently designated by fictitious names will not be appropriate for decision unless and until service of process is made on actual defendants in their stead. If at that time the statute of...
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