Vorholt v. Vorholt

• Decision Date: 20 October 1931
• Docket Number: 6980.
• Parties: VORHOLT v. VORHOLT.
• Court: West Virginia Supreme Court

160 S.E. 916

111 W.Va. 196

VORHOLT v. VORHOLT.

No. 6980.

Supreme Court of Appeals of West Virginia.

October 20, 1931

Submitted October 13, 1931.

Syllabus by the Court.

Common-law declaration should not recite evidentiary matters.

Extraneous papers may not be filed with common-law declaration as parts thereof and as exhibits therewith.

In action for malicious prosecution, demurrer to count in declaration reciting evidentiary matters at length, and making extraneous papers part thereof, held properly sustained.

Malicious purpose and want of probable cause constitute gist of action for malicious prosecution.

Gist of action for false arrest is illegal detention of person without lawful process, or by unlawful execution of such process.

In action for false imprisonment, count in declaration disclosing arrest pursuant to regularly issued warrant by authorized person, held insufficient to state cause of action.

Evidentiary matters should not be recited in a common law declaration.

Extraneous papers may not be filed with a common law declaration as parts thereof and as exhibits therewith.

A demurrer to a count in a declaration where evidentiary matters are recited at length and where an extraneous paper is sought to be made part thereof is properly sustained.

The gist of an action for malicious prosecution is malicious purpose and want of probable cause, while the gist of an action for false arrest is the illegal detention of a person without lawful process or by an unlawful execution of such process.

A demurrer is properly sustained to a count purporting to charge false imprisonment where it appears from the count itself that the imprisonment complained of was incident to an arrest under a warrant apparently regular, issued by a public official having authority to issue the same.

Error from Circuit Court, Kanawha County.

Action by Harry Vorholt against Ambrose F. Vorholt. To review a judgment dismissing the action, plaintiff brings error.

Affirmed in part, and reversed in part.

A. M Belcher, of Charleston, for plaintiff in error.

T. C Townsend and Ben Moore, both of Charleston, for defendant in error.

MAXWELL J.

This is an action for malicious prosecution and false imprisonment. The trial court sustained defendant's demurrer to the declaration and each count thereof and dismissed the action. Writ of error was awarded plaintiff.

The action grows out of a proceeding before the lunacy commission of the county of Kanawha for the purpose of inquiring into the sanity of the plaintiff. The defendant caused the warrant to be issued in that proceeding. The commission found the plaintiff not to be insane and discharged him.

The first count of the declaration is for malicious prosecution. It sets forth at length the alleged facts and circumstances attendant upon the institution of the lunacy proceeding and the prosecution thereof by the defendant and the motives which prompted him therein. This count contains the essential technical averments of malicious purpose on the part of the defendant in causing the warrant to be issued, and want of probable cause for so doing, and avers that the plaintiff was discharged by the lunacy commission upon a full hearing under the allegations of the warrant. We do not perceive error in this count and are of opinion that the trial court should have overruled the demurrer to the same. Vinal v. Core et al., 18 W.Va. 1; Tavenner v. Morehead, 41 W.Va 116, 23 S.E. 673; Finney v. Zingale, 82 W.Va. 422 95 S.E. 1046, L. R. A. 1918F, 1130.

The second count also purports to charge malicious prosecution. It contains matters, however, which do not appear in the first count. Matters of evidentiary nature are set forth at length. It is fundamental that such averments are not within the rules of pleading. Stephen on Pleading (3d Ed.) [111 W.Va. 198] p. 310. Among other extraneous matters, averment is made of a proceeding in lunacy against the plaintiff, instigated by the defendant, prior to the proceeding upon which this action is based; that that proceeding likewise terminated in the discharge of the plaintiff and that thereafter he instituted an action for damages against the defendant and others which resulted in a verdict in favor of the defendants. It is averred in the count that this matter is set forth "for the purpose of showing the system, purpose, the maliciousness and intent of the said defendant in support of count No. 1 of this declaration." In support of further allegations of this count on a matter of evidential nature not necessary to be recited in this opinion, there is purported to be filed with the count, as part thereof, a separate paper marked for identification ""Exhibit A." The rules of common law pleading do not permit the making of separate papers parts of the declaration. Disapproval of such attempted pleading is not new in this jurisdiction. Pingley v. Pingley, 84 W.Va. 433, 100 S.E. 216; Hall v. Coal & Coke Co., 89 W.Va. 55, 108 S.E. 491; Laurenzi v. Distilling Co., 90 W.Va. 794, 112 S.E. 177; Hamrick v. Nutter, 93 W.Va. 115, 116 S.E. 75. There is so much extraneous and improper matter in this count that the trial court properly condemned the count in its entirety.

The third count purports to charge false imprisonment. Its initial averment is that the "defendant, without any just, legal or other cause therefor, swore out a warrant before Roscoe Moulton, Clerk of the County Court of Kanawha County and as such, one of the Lunacy Commission of the County of Kanawha, State of West Virginia, charging this plaintiff with being mentally incompetent and insane." Allegations of arrest, unlawful restraint and imprisonment follow. In determining whether this count is good,...