Yount v. Carney

• Decision Date: 03 October 1894
• Citation: 60 N.W. 114,91 Iowa 559
• Parties: JOHN F. YOUNT, Appellant, v. M. J. CARNEY et al
• Court: Iowa Supreme Court

60 N.W. 114

91 Iowa 559

JOHN F. YOUNT, Appellant, v. M. J. CARNEY et al

Supreme Court of Iowa, Des Moines

October 3, 1894

Appeal from Mahaska District Court.--HON. A. R. DEWEY, Judge.

THIS action is against M. J. Carney as principal, and G. B McGall, Dennis Creeden, C. W. Jordan, and Michael Mitchel, as sureties on the official bond of said Carney as marshal of the city of Oskaloosa. Said bond is conditioned that said M J. Carney will "faithfully and impartially, without fear, favor, fraud, or oppression, discharge all the duties now or hereafter required of his office by law." Plaintiff alleges, as a breach of said condition, that on the fourteenth day of December, 1890, and the day following "said M. J. Carney, as city marshal, under color and by virtue of his said office and his official position, did falsely, wantonly, and wrongfully, and without reasonable or probable cause, and without warrant or any process of any court, arrest plaintiff, and held him and detained him contrary to law, * * * and by said arrest did cause said plaintiff great bodily and mental pain and suffering and anguish of mind;" wherefore plaintiff asked to recover one thousand dollars damages. Defendants answered, admitting that defendant Carney was marshal, and that they executed said bond as alleged, and denying every other allegation contained in the petition. At the conclusion of the evidence introduced on the trial, the defendants filed a motion for a verdict, which was sustained and judgment entered accordingly. Plaintiff appeals.

Reversed.

Bolton & McCoy and D. C. Waggoner for appellant.

W. G. Jones and John F. & W. R. Lacey for appellees.

OPINION

GIVEN, J.

I.

Appellees contend that "the evidence has not been made of record, and the notes and transcript have not been identified and made of record, by bill of exceptions." Appellant's abstract shows that the cause came on for trial March 19, 1892, and that the evidence was ordered reported by J. H. P. Robinson, official reporter, and was reported by him; that on the fourth day of April, 1892, by proper bills of exceptions, plaintiff preserved the evidence as set out; and that on April 12 the court overruled plaintiff's motion for a new trial. Appellee's abstract shows the bill of exceptions, as follows: "A jury was called, and the trial proceeded with. On the trial the evidence was taken down by J. H. P. Robinson, official shorthand reporter of said district. (Here the clerk will copy the shorthand notes and the transcript thereof of the evidence so taken upon the trial of said cause.)" Appellees contend that the evidence is not identified in this bill of exceptions, as required by section 2834 of the Code. Appellant's amended abstract shows that the shorthand notes of all the evidence taken by Mr. Robinson were duly filed March 22, 1893, and that the translation thereof, duly verified, was filed February 7, 1893. The bill of exceptions directs the clerk to copy "the shorthand notes and the transcript thereof of the evidence so taken upon the trial of said cause." It will be observed that the shorthand notes were on file prior to the giving of this bill of exceptions; therefore we hold that the reference in the bill was unmistakably thereto. See Hunter v. R'y Co., 76 Iowa 490, 41 N.W. 305; Glenn v. Gleason, 61 Iowa 28, 15 N.W. 659; McCarthy v. Watrous, 69 Iowa 260, 28 N.W. 586; Gardner v. R'y Co., 68 Iowa 588, 27 N.W. 768; Wilson v. First Presbyterian Church, 60 Iowa 112, 14 N.W. 138.

II. The single contention is whether the court erred in directing a verdict for the defendants. There is no question but that the defendant Carney, in his capacity as city marshal, did, on the evening of the fourteenth, and again on the evening of the fifteenth of December, 1890, in the city of Oskaloosa, without a warrant, and without the plaintiff having committed, or attempted to commit, any public offense in his presence, arrest and detain the plaintiff in custody for about two hours at each arrest. If these arrests were authorized and lawful, or if the plaintiff suffered no actual damage thereby, the action of the court is warranted; otherwise it is not. Section 4200 of the Code provides that "a peace officer without a warrant may make an arrest * * * (2) where a public offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it."

Appellant contends that, under the evidence, the question whether defendant Carney had reasonable ground for believing that the plaintiff had committed a public offense should have been submitted to the jury; while appellees contend that the evidence shows without conflict that he had reasonable ground for so believing. In view of the conclusion we reach, it is not proper that we should discuss the evidence at length. We will only notice in a general way the authority under which the defendant Carney made these arrests. He states as his authority for making the first arrest "that Eli Hawkins had a telephone from Albia or Eddyville, that he had read to him, stating that a horse was stolen at Albia, and that two men had passed through Eddyville that afternoon with two horses and buggies or buckboards, and that one of the horses resembled the horse that was stolen." Mr. Hawkins testified that the parties sending the message requested him to watch the men, or get some one to hold them until they got there, and that he so told Deputy Marshal Bush, and that Bush went and got Carney. Plaintiff and one Jackson arrived in Oskaloosa on the evening of...