Stafford v. Muster

• Decision Date: 19 June 1979
• Docket Number: No. 60468,60468
• Citation: 582 S.W.2d 670
• Parties: Lindy STAFFORD, Appellant, v. John MUSTER, Phillip Eveloff, H. C. "Sonny" Myers and Honorable William H.Kimberlin, Respondents.
• Court: Missouri Supreme Court

Page 670

582 S.W.2d 670

Lindy STAFFORD, Appellant, v. John MUSTER, Phillip Eveloff, H. C. "Sonny" Myers and Honorable William H.Kimberlin, Respondents.

No. 60468.

Supreme Court of Missouri, En Banc.

June 19, 1979.

Rehearing Denied July 17, 1979.

Irvin Achtenberg, Achtenberg, Sandler, Balkin & Hellman, Kansas City, for appellant.

Dan Hale, Strop, Watkins, Hoskins & King, St. Joseph, for respondents.

RENDLEN, Judge.

Plaintiff appeals, in an action for damages against a sheriff, two lawyers and a circuit judge, from the judgment dismissing her petition for failure to state a cause of action. ¹ The question is whether the facts well pleaded, taken as admitted and construed favorably to plaintiff, show any ground for relief. McDonough v. Aylward, 500 S.W.2d 721 (Mo.1973). We hold plaintiff's claims for malicious prosecution and abuse of process are sufficiently stated but her claim for false imprisonment is barred by limitations and her civil rights claim does not lie.

John Stafford married Sarah Iveda and to that marriage a son, James Wallace Stafford was born. John and Sarah were divorced in the circuit court of the City of St. Louis March 30, 1967, and legal custody of their son James was awarded to Sarah. John then married Lindy Stafford, plaintiff herein.

On July 20, 1971, John Muster and Phillip Eveloff, attorneys for Sarah Stafford, filed on her behalf a petition for writ of habeas corpus in the circuit court of Buchanan County, alleging that her minor son, James, had been illegally detained and deprived of his liberties since July 4 by John and Lindy Stafford at their home in Buchanan County. Sarah in her verified petition further stated that they refused to return the child to her as legal custodian under the decree of divorce.

The case, No. 95,412, was assigned to Division One and the Honorable William H. Kimberlin presiding issued a writ of habeas corpus to John and Lindy Stafford commanding them to bring James Stafford before the court. That writ was served on Lindy at 1:30 p. m., July 23, 1971, but service was not obtained on John. During the ensuing one and one-half hours, the only time afforded Lindy Stafford to make her return, Sarah and her attorneys were apparently preparing a verified application for writ of attachment alleging that John and Lindy Stafford refused or neglected to obey the writ of habeas corpus by failing to produce James Stafford and by failing to make a return within the time required, without sufficient excuse for such refusal or neglect.

The application was filed and immediately Judge Kimberlin issued an attachment ordering the sheriff to attach the bodies of John (who had never been served) and Lindy Stafford, to bring them immediately before the court and confine them until they complied with the writ of habeas corpus. Pursuant to the attachment Lindy Stafford was taken into custody by the sheriff shortly after 3:00 p. m. the same day and brought before the court where she was questioned in the first instance by Judge Kimberlin and then at length by defendant Muster. Lindy, who had requested but was denied the opportunity to be represented by counsel, stated she did not have James Stafford in her custody and did not know where he was. During the interrogation that followed she refused to answer a question as to the name of her parents' home town ² and upon her refusal was sentenced to serve thirty days in the Buchanan County jail for contempt of court, though Lindy had "promptly purged herself of said contempt by stating . . . that the home town of the Strickland family was Healdton, Oklahoma." Lodged in jail over night, she was granted a stay of execution the following day and placed under bond.

On July 29, Lindy appeared with counsel before Judge Kimberlin for further interrogation and was questioned this time by defendant Eveloff. Asked to give her residence telephone number, she stated the phone had been disconnected. She was then asked the number before the disconnection and she refused to answer, whereupon she was again cited for contempt, her stay of execution terminated, and she was sentenced to an additional 30 days imprisonment to be served consecutively with the prior sentence. She was returned to jail and held there from July 29 to August 26 when a new stay of execution was granted "on the condition that she reports to the St. Louis Circuit Court or to any other court in connection with any hearing regarding the minor child James Stafford."

In 1972, Lindy Stafford made application to the Missouri Court of Appeals, Kansas City District, No. KCD 26440, for a writ of habeas corpus. On November 19 of that year, Judge Kimberlin moved to stay the application for writ of habeas corpus stating that Lindy Stafford was "not now in the custody of, nor restrained of her liberty" by him. On December 4, 1972, the court of appeals issued its writ of habeas corpus to Judge Kimberlin as prayed by Lindy Stafford, for return January 5, 1973, "wherein you shall state any legal cause for your restraint of said Lindy Stafford." Judge Kimberlin made no further response. On January 12, 1973, the court of appeals entered an order declaring that the proceedings in the Buchanan County case no. 95,412 were "null, void and of no legal effect" and that Lindy Stafford "be absolutely discharged from the jurisdiction, custody and orders whatsoever of the respondent judge (Kimberlin) in case no. 95412."

Plaintiff thereafter brought this action for damages alleging that the proceedings in the 1971 Buchanan County habeas corpus action were illegal, null and void; that the Buchanan County circuit court was without jurisdiction to entertain the petition for habeas corpus; that each defendant knew at that time "that said minor child was not in the custody of plaintiff, nor being restrained by her"; that the writ of attachment was null and void; that defendants "individually and in concert procured, instigated, directed, participated in and/or affected the illegal and void acts herein set forth"; that the illegal and void acts were "knowingly and wilfully committed in violation of the laws"; and that all the proceedings "were procured by defendants maliciously, without reasonable or probable cause, without authority or law, and with intent to injure plaintiff." ³ The petition was dismissed by the trial court for failure to state a cause of action and plaintiff appeals contending that she has stated causes of action for malicious prosecution, false imprisonment, abuse of process, and violations of civil rights actionable under 42 U.S.C. § 1983 (1976), the Civil Rights Act of 1871.

Before examining the law pertinent to the various claims propounded, it should be noted the four separate processes issued by the court may each have given rise to an intentional tort. Those processes are the writ of habeas corpus of July 23, 1971, the writ of attachment of July 23, the first commitment for contempt on July 23 and the second commitment for contempt on July 29. Each must be addressed in the context of the separate intentional torts alleged.

I. MALICIOUS PROSECUTION

The elements of an action for malicious prosecution are (1) the commencement or prosecution of the proceedings against the present plaintiff; (2) its legal causation or instigation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage by reason thereof. Huffstutler v. Coates, 335 S.W.2d 70, 73 (Mo.1960); McFarland v. Union Finance Co., 471 S.W.2d 497, 499 (Mo.App.1971).

As to the habeas corpus proceeding and writ of attachment, the petition clearly alleges facts satisfying these three referenced elements of malicious prosecution: (1) the commencement and continued prosecution of proceedings under the named writs, (2) defendants' causation or instigation of same, and (6) damages. The third named element, termination of the proceedings favorably to plaintiff, is sufficiently alleged in the petition by reference to the order of the court of appeals in plaintiff's 1973 proceeding against the circuit judge. Though the 1971 Buchanan County habeas corpus action could not be appealed, E.W. v. K.D.M., 490 S.W.2d 64 (Mo. banc 1973), the legality of the judgment for contempt was a proper subject of inquiry by habeas corpus, Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054 (banc 1943), which necessarily involved the question of the propriety of the original writs of habeas corpus and attachment. Plaintiff sought that means of obtaining relief in the appellate court through her own habeas corpus action. Her successful prosecution of that action satisfies the element requiring termination of the original action in her favor. The fifth named element, malice, is adequately alleged by the statement, "All of the proceedings against plaintiff hereinabove set forth were procured by defendants maliciously, . . ." As Rule 55.15 provides, "Malice . . . and any other condition of mind of a person may be averred generally."

The fourth named element, want of probable cause, is our principal concern. Plaintiff alleges that at the time the habeas corpus petition was filed defendants "knew that said minor child was not in the custody of plaintiff, nor being restrained by her, . . ." Rule 91.16(1) and (4) require plaintiff to state in her return (had she been given time to file it) whether she then had the child in custody or at any time prior to "service of the writ." If so, and custody had been transferred to another then "the return shall state particularly to whom, at what time, for what cause, and by what authority such transfer took place." Id. Thus, under the facts stated in the petition, we see no lack of probable cause at the Commencement of the action, because plaintiff's petition does not allege that defendants knew the child was Never in Lindy Stafford's custody. Stated otherwise, defendants by habeas corpus...