Tavenner v. Morehead.

• Decision Date: 14 June 1895
• Citation: 41 W.Va. 116
• Parties: Tavenner v. Morehead.
• Court: West Virginia Supreme Court

41 W.Va. 116

Tavenner

v.Morehead.

Supreme Court of Appeals of West Virginia.

Submitted June 14, 1895-Decided Nov. 16, 1895.

1. Malicious Prosecution Declaration.

A declaration for malicious arrest or prosecution must set forth the alleged malicious conduct of the defendant on which it is predicated, otherwise it is demurrable.

2. Contempt of Court False Imprisonment Malicious Prosecution.

A rule for contempt is the judicial act of the court issuing it, and therefore can not be the foundation for an action for false imprisonment, however erroneously issued, but may be for malicious prosecution, provided the application for the same is without probable cause, actuated by impure and malicious motives, and founded on falsehood or misrepresentation.

Miller & White for plaintiff in error, cited 2 Bouvier's Law Diet. p. 140; Barton's Law Practice; Hilliard on Torts; Barton's Law Practice, vol. 1. p. 185; Amer. & Eng. Ency. of Law, vol. 7, p. 66, and 664; 16 Graft, 73; 4 Minor's Inst. p. 392, 398; 1 Barton's Law Prac. p. 388; 4 Minor's Inst. p. 1443; 18 W. Va. 1 and 44; 22 W. Va. 234 and 242; 28 Graft. 891; Hogg's Plead. & Forms, 337-339; 1 W. Va. 53; 28 Fed. Rep. 351; 58 Iowa, 447; 64 Cal. 284; 27 Am. State Reports, 184; 1 Hilliard on Torts, p. 199; 30 Am. St. R. 45; 2 Hilliard on Torts, pp. 168, 170-1-3; 1 Kelley's Stat. Ch. 43, p. 405 and note; 32 Eng. Com. Law Rep. 415; 24 W. Va. 416; 2 Va. Cases, 408; 21 Fed. Rep. 771; Code, c. 130, s. 25; Id. c. 50. s. 3; 1 Rob. (Old) Prac. p. 253-4; 16 Am. Rep. 528, 3d Syl; 19 Fed. Rep. 812; 24 Fed. Rep. 726; 2 Beach Mod. Eq. Prac. § 892; 113 Mass. 411; 4 Paige, 360; 24 W. Va. 279; 16 W. Va. 864; 13 Graft. 57; 25 W. Va. 139.

John A. Hutchinson, for defendant in error, cited 89 Eng. Com. Law Rep. 467; 4 Rob. Prac. 680, 681; 1 Hill. Torts, 443; 1 Chit. Plead. 388; 2 Wilson, 302; 7 Am. Dec. 603; 8 Id. 674; 30 Id. 611; 1 Hil. Torts, 443; 3 Law. R. & Kern. § 1081; 8 Ohio St. 548; Cooley, Torts, 187, 188; 3 Gill. & John. 378; 4 Bingh. (N. C.)212; 38 Me. 527; 4 Camp. 213-14, 526; 1 Jones (Pa.) 82; 18 W. Va. 1; 20 Am. Dec. 96; 12 Conn. 226; 8 Watts, 240; 12 Am. Dec. 268; 1 Am. Lead. Cas. (4th Ed.) 209, 211; 2 Wilson, 145; 2 Dev. & Bat. 360, 363; 3 Leigh, 561; 3 Moore & Payne, 12; 8 C. & P. 11, 18; 16 Pick. 478, 490; 5 B. Mom 544; 21 Fed. Rep. 761.

Dent, Judge:

John T. Tavenner brought an action of trespass on the case against Roberta E. Morehead in the Circuit Court of Wood county on the 11th day of July, 1893. Such proceedings were had in the case that after two trials thereof judgment was finally entered for the plaintiff on the 15th day of July, 1891, for the sum of three hundred dollars, from which an appeal and supersedeas was obtained by the administrator of the defendant, she having died after judgment entered. The following errors are assigned: (1) The overruling the demurrer to the declaration; (2) refusal to sustain the motion in arrest of judgment; (3) and to grant the defendant a new trial.

The declaration is as follows:" John T. Tavenner complains of Roberta E. Morehead, who has been duly summoned, of a plea of trespass on the case, riot that, whereas, the defendant, heretofore, to wit, on the 25th day of June, in the year 1887, at the county aforesaid, not then having any reasonable or probable cause of action or proceeding whatsoever against the said plaintiff, for which the said defendant caused the plaintiff to be maliciously arrested, as hereinafter mentioned, but wrongfully and unjustly contriving and intending to imprison, harass, and injure the plaintiff, falsely and maliciously caused and procured to be sued and prosecuted out of the Circuit Court for the county of Ritchie, in the said state, a certain order and attachment in two certain suits in chancery then pending in said court wherein the said Roberta E. Morehead was complainant and John T. Tavenner was defendant in one of said suits, and in the other Roberta E. Morehead was complainant and Eliza W. McCandish defendant, at the suit of the said defendant against the said plaintiff, which mid order and attachment was directed to the sheriff of Wood county, or to any officer to whom the said order might come, by which said order so issued by the said Circuit Court of Ritchie county, the said sheriff, or any officer to whom the said order might come, was commanded and required to attach the body of the said plaintiff, John T. Tavenner, and have him before the said Circuit Court of Ritchie county, on the 27th day of June, 1887, at eleven o'clock a. m. And the said defendant, contriving and intending as aforesaid, afterwards, to wit, on the 27th day of June, 1887, at the county of Wood aforesaid, falsely and maliciously and without any reasonable or probable cause of action or proceeding whatsoever against the said plaintiff, caused and procured the said order and attachment to be executed by B. F. Stewart, deputy for Samuel Stewart, sheriff of Wood county, by arresting the plaintiff by his body under and by virtue of said order and attachment so issued as aforesaid, and to be thereupon imprisoned and kept and detained in custody by said deputy sheriff for a long space of time, to wit, for the space of twenty four hours then next following and until the said plaintiff, in order to procure his release and discharge from said custody and imprisonment, was forced and obliged to, and did afterwards, to wit, on the 28th day of June, 1887, at the county of Ritchie aforesaid, appear before the said Circuit Court of Ritchie county in his own proper person, and was by the said defendant caused and procured to be kept and detained in custody until he, the said plaintiff, was required to and did enter into his personal recognizance in the penalty of fifty dollars conditioned for his personal appearance before the said Circuit Court of Ritchie county on the second day of the then next term of the said last-mentioned court, which recognizance the plaintiff then entered into before said Circuit Court for the purposes aforesaid. Whereas, in truth and in fact the said defendant, at the time of suing forth the said order and attachment, and of the said arrest, detention, and imprisonment, had not any reasonable or probable cause of action or proceeding against the said plaintiff for any alleged contempt or otherwise for which she, the said defendant, so caused the plaintiff to he arrested and held to bail as aforesaid, or whereby or for which he, the said plaintiff, by the law of the land or by the practice of the said Circuit Court of said Ritchie county, could or ought to have been arrested or imprisoned or held to bail as aforesaid. And the plaintiff further says that such proceedings were thereupon had upon said order and attachment that afterwards, to wit, on the 18th day of October, 1887, the said Circuit Court of Ritchie county considered and ordered that the said rule upon which the said order and attachment, had been issued, and the said order and attachment be and the same were dismissed, and the said plaintiff was discharged therefrom and that the said plaintiff be and he was discharged, and that the plaintiff (the then defendant) recover from the said Roberta E. Morehead his cost about his said defence expended. And the said action and order and attachment so persecuted and caused to be persecuted, by the said defendant was and is by means of the premises and according to the course and practice of the said Circuit Court of Ritchie county and according to law wholly discharged, ended, and determined, to wit, at the county aforesaid; by means of which several premises the said plaintiff, whilst he was so under arrest, in custody, and imprisoned as aforesaid, not only suffered great pain of body and mind, and was greatly exposed and injured in his credit and circumstances, and was hindered, detained, and prevented from performing and transacting his lawful affairs and business, to wit, his business of merchandising in the city of Parkersburg, Wood county, aforesaid, and affairs connected therewith, by him during that time to be performed and transacted, but was also forced and obliged to lay out and expend in going from Parkersburg to Ritchie court-house and remaining there and returning: the first on the occasion of his said arrest and the second on the occasion of his making his appearance in discharge of his said recognizance, and did necessarily lay out and expend divers large sums of money in making said trips, hotel bills and other expenses, amounting to about the sum of five hundred dollars, and also in the sum, to wit, of five hundred dollars in fees and expen ses in and about procuring his release and discharge from said arrest and imprisonment, and hath been and is by means of the premises otherwise greatly damaged, to wit, in the sum of one thousand dollars; and therefore he brings this suit, "

The question presented is as to whether this is a good declaration for malicious prosecution, or, as plaintiff's counsel insists on calling it, for malicious arrest. It is not a good declaration for false imprisonment, as it shows on its face that the attachment complained of was issued and executed by competent legal authority. This being the case, an action for false imprisonment would not lie, for the gist of such action is the illegal detention of a person without lawful processor by unlawful execution of such process. ^Neither of these things are alleged in the declaration. On the contrary, it appears that it was issued by a court having jurisdiction, and executed by the proper officer, and in a proper manner; hence the declaration must be regarded as a declaration for malicious prosecution, and examined in the light of the rules governing such cases.

An action for malicious prosecution does not lie where the arrest complained of is without legal authority, but only lies where a person without probable cause uses lawful process to vent his private malice or spleen, to oppress, harass, or gain some undue...