Thompson v. Ellsworth

• Decision Date: 21 November 1878
• Citation: 39 Mich. 719
• Court: Michigan Supreme Court
• Parties: Merritt A. Thompson v. Charles J. Ellsworth

39 Mich. 719

Merritt A. Thompson v. Charles J. Ellsworth

Supreme Court of Michigan

November 21, 1878

Submitted October 31, 1878

Error to Eaton.

False imprisonment.Defendant brings error.

Judgment affirmed with costs.

Sagendorph & Fales for plaintiff in error.Special damage must be pleaded specifically, circumstantially and with reasonable certainty, 1 Chitty Pl., 338, 396-9;Fuller v Bowker, 11 Mich. 204;Shaw v. Hoffman, 21 Mich 121;Squier v. Gould, 14 Wend. 159;De Forest v. Leete, 16 Johns. 122; damages are generally allowed only to the commencement of suit, Com. Dig., tit. Damages, (D); Sedgwick on Damages, 116;Powers v. Ware, 4 Pick. 106;Pierce v. Woodward, 6 Pick. 206;Shaw v. Etheridge, 3 Jones 300; and damages accruing later can be shown only where the injury is continuous, Sedgwick Damages, 700;Curtiss v. Rochester & Syracuse R. R., 20 Barb. 282; Hilliard on Torts, 420-8; in England writs of attachment may issue for contempts without order of court, 2 Dan. Ch. Pr., 1060.

Frank A. Hooker for defendant in error.A writ that has been set aside for irregularity is no defense to an action for assault and battery or false imprisonment, Addison on Torts, §§ 831, 921;Kerr v. Mount, 28 N. Y., 659;Smith v. Shaw, 12 Johns. 257;Merrit v. St. Paul, 11 Minn. 223;Stetson v. Goldsmith, 30 Ala. 602;Chapman v. Dyett, 11 Wend. 31;Hayden v. Shed, 11 Mass. 500;Emery v. Hapgood, 7 Gray 55;Cogburn v. Spence, 15 Ala. 549; in obtaining the issue of an attachment against the person for contempt, a showing should be made to the court having jurisdiction of the cause, 2 Barb. Ch. Pr., 275, 278; subsequent conviction does not legalize an unwarranted arrest or take away a right of damages for it, Josselyn v. McAllister, 22 Mich. 300; an attorney is liable for an illegal arrest made under his direction, Sleight v. Leavenworth, 5 Duer 122; it is within the discretion of the court to permit proof to be made after the argument is begun, Lee v. Hardgrave, 3 Mich. 84;White v. Bailey, 10 Mich. 160.

OPINION

Graves, J.

This is an action for trespass to the person in causing an arrest and imprisonment under illegal process.It originated in justice's court and was taken by appeal to the circuit court, where defendant in error recovered $ 100.The case comes here at the instance of defendant below on writ of error and bill of exceptions.

Prior to June 18th, 1875, Ellsworth's wife prosecuted a bill against him for divorce in the circuit court for the county of Eaton in chancery, and on that day the court decreed a dissolution of the marriage, and further that the wife, then Olive C. Ellsworth, should have the care, custody and education of their minor child, George Ellsworth, who was ten and a half years old, and that the child should remain with her until he should be fourteen years old.The decree remained unappealed from and unchanged.Subsequently Mrs. Ellsworth intermarried with plaintiff in error, and Ellsworth at some time, but when is not specified in the record, and by some means not explained, obtained the child and detained him from her contrary to the decree and in contempt of the authority of the court in that behalf.July 5th, 1877, she made affidavit setting forth the facts, and plaintiff in error, as her counsel, obtained from the register of the court on this affidavit, and without any kind or form of preliminary order from any source, a writ of attachment under Comp. L., § 5693, for Ellsworth's arrest to answer for his alleged misconduct in disobeying the decree.The sheriff soon afterwards arrested him on this paper and confined him in jail under it for about four days.He was then produced in court and on motion by counsel in his behalf the paper was declared to be void and he was liberated.

Immediately, however, the court, on a new affidavit, entered an order for another attachment for the same cause and which was then issued and at once served.And thereupon Ellsworth purged his contempt to the satisfaction of the court by producing the child and delivering him to the mother.

Ellsworth then brought this action against Thompson for having caused the first arrest and imprisonment.

First.He made no submission to that arrest and did nothing to disable himself from complaining of it as illegal.The court was correct in deciding against its validity.The law does not allow an attachment against the person to issue in such a case as of course, or upon the judgment of the register that an affidavit made therefor is sufficient.Even an injunction,--a process which never imprisons, and which is prayed for upon a case solemnly made on oath,--is not permitted to issue in that way.An express order based on the showing and authorizing the register to send out the writ is an indispensable prerequisite.The law has not attempted to clothe the register with power to pass on the facts in such applications and allow or refuse the writ according to his judgment.

It is not needful to dwell on the distinction between what is void and what is only voidable.

The writ here was moved out under the court's seal without authority, and Thompson, who caused it to be so sent out, could not justify under it.The view of the court in Ward v. Cozzens, 3 Mich. 252, 260, covers the principle.

Second.Certain claims for damages are opposed, first, on the ground that the declaration is insufficient; and second, because as is urged they include a charge for time lost not only after the release from the arrest, but also subsequent to the commencement of the suit.

The objection drawn from the state of the declaration has no force.The declaration is much more precise than is customary in justice's courts, and withal is not open to the point that it is not specific enough to admit the evidence.Hurtford v. Holmes, 3 Mich. 460;Comstock v. Howd, 15 Mich. 237;Page v. Mitchell, 13 Mich. 63;Josselyn v. McAllister, 22 Mich. 300;Parsons v. Harper, 57 Va. 64, 16 Gratt. 64;Bonesteel v. Bonesteel, 30 Wis. 511.

The second ground requires more notice.The suit was commenced on the same day of the discharge, July 17th.At the trial Ellsworth was allowed against objection to testify in substance that before his arrest he had agreed with two persons to work for them in harvest, and that if not interrupted the employment would have lasted twelve days, and that his arrest and confinement for which he had sued caused him to lose these jobs.The record is blind, but it seems to have been assumed by court and counsel that the period of twelve days so mentioned passed the time of commencement of the suit on the 17th of July and covered some space subsequent to that.

The record states that the bill of exceptions contains substantially all the testimony which was given at the trial and it appears that no evidence was adduced touching the compensation Ellsworth was to receive or excepted to receive for his work in harvest, nor any concerning the value of such work or in regard to farm wages of any kind.The whole subject was allowed to drop as to matter of proof, with the testimony of Ellsworth himself that he had agreed to work and lost...