Tredway v. Birks

• Decision Date: 21 May 1932
• Docket Number: 7242,7243
• Citation: Tredway v. Birks, 59 S.D. 649, 242 N.W. 590 (S.D. 1932)
• Parties: ERNEST F. TREDWAY, Respondent, v. SAMUEL BIRKS, et al, Appellants.
• Court: South Dakota Supreme Court

59 S.D. 649

242 N.W. 590

ERNEST F. TREDWAY, Respondent,

v.

SAMUEL BIRKS, et al, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. Alva E. Taylor, Judge #7242, 7243 -- Affirmed in part, and reversed in part Longstaff & Gardner, Huron, SD Attorneys for Appellants. Matz & Wipf, Huron, SD Attorneys for Respondent. Opinion Filed May 21, 1932

RUDOLPH, J.

The complaint herein purports to state two causes of action. There are two defendants. Each defendant filed a separate demurrer to each cause of action. The demurrers were overruled by the trial court. Each defendant appealed, and the appeals are consolidated in this court by stipulation of the parties.

The complaint is voluminous, and it is impractical to set it out in haec verba. The gist of each cause of action is to recover alleged damages resulting from the arrest of the plaintiff. We have carefully examined the complaint and are of the opinion that, to sustain either cause of action as pleaded, it must be sustained upon either the theory of false imprisonment or malicious prosecution. There is no contention by the pleader that either cause of action could be sustained upon any other theory, and we, therefore, limit our discussion to these two subjects.

With reference to the first cause of action, the appellants contend that the complaint establishes the fact that the plaintiff, prior to the time it is alleged the defendants caused his arrest, had committed a felony; that this fact establishes that the arrest of the plaintiff was lawful, whether accomplished with or without a warrant, and it follows that there was no false imprisonment. The appellant further contends that, if the complaint alleges the commission of a felony by defendant, this establishes probable cause for the arrest and negatives any claim for malicious prosecution. In view of these contentions of the appellant, we set forth, in substance, the allegations of the complaint which appellants contend allege the commission of a felony by the plaintiff. The defendant Urquhart was engaged in the business of selling automobiles in Huron, the defendant Birks was the general manager of the business. The plaintiff purchased an automobile from Urquhart (through agents of Urquhart), and in part payment gave a chattel mortgage back on the automobile, which mortgage was filed in Beadle county. At the time the plaintiff purchased the car, he informed defendants’ agents that he had a position with the Prohibition Department working out of Sioux Falls and needed the car in performance of his duties. The complaint then alleges that the defendants unlawfully induced the sheriff of Minnehaha county to arrest the defendant without having a warrant therefor; that the plaintiff “had merely taken said automobile to Sioux Falls for use in connection with his work.”

Section 4380, R.C. 1919, as amended by chapter 110, Laws of 1925, in part provides that: “Every mortgagor of personal property, who, while the lien of his mortgage remains in force and unsatisfied ... removes any part of the property covered by such mortgage from the County in which such mortgage is filed, except temporarily in accordance with the usual and customary use of the same, ... without the written consent of the then holder of such mortgage shall be deemed guilty of a felony.” Appellant contends that the facts above set out show the plaintiff guilty of violating the provisions of the above statute. With this we cannot agree. To sustain the demurrer on the grounds here urged, it must appear from the complaint that the above statute has been violated. We must be able to say that the complaint, not only alleges that the automobile was removed from Beadle county without the written consent of the holder of the mortgage, but also that the automobile was not removed “temporarily in accordance with the usual and customary use of the same.” The fact that the removal was something more than temporary in accordance with the usual and customary use of the property is an essential ingredient of the offense as it is defined by the above statute, and must be established before it can be held that the statute has been violated. Nowhere in the complaint is it specifically alleged that the removal of the automobile was without the written consent of the holder of the mortgage, but, overlooking this essential (because it might be said that by necessary implication this fact is established in the complaint), what is there in the complaint to establish that the automobile was removed other than “temporarily in accordance with the usual and customary use of the same"? The defendant alleges that he “had merely taken said automobile to Sioux Falls for use in connection with his work.” By his use of the word “merely” the plaintiff impliedly, at least, alleges that the...