State ex rel. Utz v. Daues

• Decision Date: 16 August 1926
• Docket Number: 26194
• Citation: 287 S.W. 606
• Parties: STATE ex rel. UTZ v. DAUES et al., Judges
• Court: Missouri Supreme Court

287 S.W. 606

STATE ex rel. UTZ v. DAUES et al., Judges

No. 26194

Supreme Court of Missouri, Second Division

August 16, 1926

James P. Boyd, of Paris, for respondents.

OPINION

BLAIR J.

This is an original proceeding by certiorari seeking to quash the opinion and judgment of respondents as judges of the St Louis Court of Appeals, whereby they affirmed the judgment of the circuit court of Shelby county, entered upon a directed verdict for defendant, in the case of Meda Utz v. Joseph B Mayes (Mo. App.) 267 S.W. 59. That was an action for false imprisonment.

The facts controlling in this proceeding are those stated in the opinion of respondents. We will refer to Meda Utz as plaintiff and to Joseph Mayes as defendant, because they are so referred to by respondents.

The Kendall school district of Shelby county had been in possession of a half acre of land for school purposes for more than 40 years. Defendant was president of the board of directors of said school district. Plaintiff resided on lands adjoining the school premises. Shortly before September 11, 1920, plaintiff erected a fence across said school premises which separated the main school building from its outbuildings. At the request of the people of the school district the board of directors undertook to protect the school property from such alleged trespass, and defendant, as president of the board, requested plaintiff to remove said fence. This she refused to do. Thereafter defendant and other directors went to Shelbyville to consult the prosecuting attorney, and, being unable to see him, consulted another attorney. Later defendant and other directors returned to the county seat and stated the facts to the prosecuting attorney. The prosecuting attorney went to the school premises and personally viewed the situation. He then prepared an information against plaintiff and others attempting to charge a violation of section 3396, R. S. 1919, defining waste, trespass, and other injury to school property, which acts are denounced as misdemeanors.

Thereafter the circuit court sustained a demurrer to said information and plaintiff was discharged. It is unnecessary to set out the information. Respondents seem to have assumed for the purposes of their opinion that the action of the circuit court was correct and that the information did not charge a crime against plaintiff, and seem to have decided the case upon the theory that said information stated no crime. It will not be necessary to set out section 3396.

After the prosecuting attorney prepared the information he directed defendant to take it to the circuit clerk, sign the affidavit appended thereto, and swear to the same. Defendant did so. The clerk returned the verified information to the prosecuting attorney, and he filed same in the clerk's office and directed him to issue a warrant for plaintiff. The clerk issued the warrant. The sheriff was in Shelbina, and the clerk sent the warrant to him by some one of the representatives of the school district. The clerk did not know whether it was sent by defendant or some one else. Respondents apparently assumed, for the purposes of their opinion, that such person was defendant. Upon receipt of the warrant the sheriff served it upon plaintiff. She was not taken into custody, but was trusted to come in and give bond, and later did so. She was not taken into physical custody nor confined in jail.

We quote from the opinion of respondents as follows:

'We think the evidence goes no further than demonstrating that defendant, after an interview with his attorney, went to the prosecuting attorney of the county and properly and truly laid the facts before him relative to the erection of a fence across the school grounds by plaintiff. It is true that defendant, at the request of the prosecuting attorney, took the information with the unexecuted affidavit appended to it to the circuit clerk for execution and verification, but, in so doing, defendant was merely acting as a messenger, and it was either necessary for defendant to go before some one authorized to affix the jurat or to have some person so authorized to be brought to him. It is also true that some one, possibly defendant, carried the capias to the sheriff at Shelbina at the request of the circuit clerk, but in this instance also the person carrying the capias to the sheriff was merely acting as the messenger of the circuit clerk. We attach no importance to either incident.

'It is the contention of plaintiff that the information, failing to charge any crime, is without warrant or authority in law, and void. The defendant does not discuss the question as to whether the information states facts sufficient to constitute a crime against plaintiff, and says that plaintiff's contention that, 'The process being void it could afford no protection to any one instrumental in inciting, preferring, or executing it, or aiding in its continuation,' is not applicable under the law of this state to the case at bar.

'Reverting to section 3396, supra, we think that the circuit court had general jurisdiction over the subject-matter of trespass. While we are of the opinion, without deciding, that section 3396 is a valid statute, in the view we take of the matter it is unnecessary to pass on that question. As is said in Gifford v. Wiggins, 50 Minn. 401, 52 N.W. 904, 18 L. R. A. 356: 'It seems to be settled by an almost unbroken line of authority that if a person merely lays a criminal complaint before a magistrate in a matter over which the magistrate has a general jurisdiction, and the magistrate issues a warrant upon which the person charged is arrested, the party laying the complaint is not liable for an assault or false imprisonment, although the particular case may be one in which the magistrate had no jurisdiction. * * * This rule has been frequently applied where the facts stated in the complaint did not constitute a public offense, and it can make no difference in principle whether this is because the facts stated do not bring the case within a valid statute, or because the statute under which the proceedings were instituted is invalid. In either case, the acts charged constitute no offense, because there is no law making them such.'

'In Marks v. Townsend, 97 N.Y. 590, it is said: 'This rule of exemption is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances without the risk of undue punishment for their own ignorance of the law or for the errors of courts and judicial officers' Also, see Smith v. Clark, 37 Utah 116, 106 P. 653, 26 L. R. A. (N. S.) 953, Ann. Cas. 1912B, 1366, loc. cit. 1373, note, where the authorities are collected pro and con. The note states, however, that the great weight of authority sustains the view that where a magistrate has general jurisdiction over the subject-matter of a criminal prosecution, a person making a complaint before him is not, because of that act, liable for false imprisonment, although the complaint is insufficient to charge the commission of a crime.

'The evidence, in our opinion, fails to demonstrate that defendant was guilty of officious interference, or participated in having the information or capias issued and executed. He may have acted as a messenger, but such action does not warrant an inference that he officially interfered or participated. The evidence merely shows that defendant laid the facts before the prosecuting attorney, who physically investigated them, and then prepared an information, defendant thereupon executing the appended affidavit. The facts failed to show a responsibility in law upon defendant's part, for he presented a true state of facts to the prosecuting attorney who was then acting in a judicial capacity. The facts were not sufficient to justify a verdict in plaintiff's favor against defendant for false imprisonment, even though the information failed to state a public offense, and even though the prosecuting attorney should not have issued the information or caused the capias to be issued thereon. We think that McCaskey v. Garrett, 91 Mo.App. 354; Brueckner v. Frederick, 109 Mo.App. 614, 83 S.W. 775; Dougherty v. Snyder, 97 Mo.App. 495, 71 S.W. 463; and Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223, 10 Am. St. Rep. 322,...