Wachsmuth v. Merchants' Nat. Bank

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

56 N.W. 9

96 Mich. 426

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.

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 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 proceeding, procuring the order, and delivering the process to the sheriff for execution. An arrest and imprisonment in a civil case upon void process is as one without process, and cannot be justified. Good faith, honest belief, and the advice of counsel may be shown to rebut the presumption of malice, and to avoid punitive damages, but not to justify an arrest and imprisonment under an absolutely void process. Johnson v. Maxon, 23 Mich. 128; Johnson v. Morton, 94 Mich. 1, 53 N.W. 816; 17 Amer. & Eng. Enc. Law, 679, 681, note 1; 19 Amer. & Eng. Enc. Law, 516; Vredenburgh v. Hendricks, 17 Barb. 179; Fischer v. Langbein, 103 N.Y. 84, 8 N.E. 251; Miller v. Adams, 52 N.Y. 409; Bonesteel v. Bonesteel, 28 Wis. 245; Fenelon v. Butts, 53 Wis. 344, 10 N.W. 501.

It is urged that malice cannot be charged against a corporation unless it is shown that the act done was ordered by the board of directors. The suit was instituted in the name of the corporation. Its cashier made the affidavit in which he alleged that he is "the cashier and agent of the Merchants' National Bank, the plaintiff named in the annexed writ of capias ad respondendum, and has full authority to and makes this affidavit for and on behalf of said plaintiff." The attorneys for the plaintiff were the regular attorneys of the bank, were employed and paid by the bank, and one of the attorneys was at the time a director in said bank. A motion was made by defendants to quash the capias, which was granted. Application was then made to this court by the bank for a mandamus directing the circuit court to set aside the order quashing the writ. The expenses of that proceeding were shown to have been paid by the bank. The cashier must be presumed, prima facie, to have had authority to direct the commencement of the suit. Frost v. Sewing-Mach. Co., 133 Mass. 563, where it was held that the general...