Wachsmuth v. Merchants' Nat. Bank

• Decision Date: 25 July 1893
• Citation: 56 N.W. 9,96 Mich. 426
• Parties: WACHSMUTH v. MERCHANTS' NAT. BANK et al.
• Court: Michigan Supreme Court

96 Mich. 426
56 N.W. 9

WACHSMUTH
v.
MERCHANTS' NAT. BANK et al.

Supreme Court of Michigan.

July 25, 1893.

Error to circuit court, Muskegon county; Albert Dickerman, Judge.

Action by John Wachsmuth against the Merchants' National Bank and Herman O. Lange. Judgment for plaintiff. Defendants appeal. Affirmed.

[56 N.W. 9]

Sessions & Bassett and F. W. Cook, for appellants. De Long & O'Hara, for appellee.

McGRATH, J.

This is an appeal from a judgment for plaintiff in an action for false imprisonment. Plaintiff, on October 20, 1891, was a member of the common council of the city of Muskegon. The Merchants' National Bank was the financial depository of said city. John Torrent was president of said bank, and defendant Lange was cashier. On that date, plaintiff, as alderman, presented to the common council of the city, at a session thereof, the following preamble and resolution: “Whereas, by a late decision of the supreme court of this state, a decree of the circuit court for the county of Muskegon, in chancery, was affirmed against John Torrent, and which decree will in all probability compel the said Torrent to pay at least $125,000; and whereas, the said Torrent is the principal surety of the Merchants' National Bank on its bond as depository of the moneys of the city of Muskegon; and whereas,

[56 N.W. 10]

this council does not deem it entirely safe to leave the city's money on deposit in said bank without additional security to be approved by this council: Therefore be it resolved by the common council of the city of Muskegon that, for the security of said city, an order be drawn on the city treasurer in favor of Leonard Eyke, the city treasurer, for the sum of one hundred and eighty-four thousand dollars, and that the money so received by said Leonard Eyke as the proceeds of said order be deposited in the other four banks of the city in equal proportions, and there kept until such additional security to the satisfaction of this council be given by the said Merchants' National Bank. John Wachsmuth.” A motion to refer the resolution was lost by a vote of three to nine. A motion to adopt was lost by a vote of five to seven. On October 25, 1891, the Merchants' National Bank commenced an action on the case for libel, by capias, which was issued upon the affidavit of the defendant Lange. An order to hold to bail in the sum of $2,000 was indorsed by a circuit court commissioner, and plaintiff was arrested, committed to jail, and afterwards gave bail.

It is contended that the order to hold to bail protects the defendants. The officer indorsing the order was one of special and limited jurisdiction. The affidavit disclosed that the resolution was offered by plaintiff as a member of the common council to that body, and related to a matter in the line of plaintiff's duty as a public officer. In other words, the affidavit, upon its face, showed that the resolution charged as libelous was, as a matter of law, absolutely privileged. So far from setting forth any facts and circumstances tending to show grounds for granting the order, the affidavit expressly negatived any liability whatever to the plaintiff. The defect was therefore jurisdictional, and the order was absolutely void, and affords no protection to the parties instituting the...