Burch v. Franklin, Jr.

ARREST-FALSE IMPRISONMENT.

[Licking Common Pleas, September Term, 1897.]

FRANK C. BURCH V. JOHN H. FRANKLIN, JR.

1. TO JUSTIFY ARREST WITHOUT WARRANT, FELONY MUST HAVE BEEN COM

MITTED.

Before a person can be lawfully arrested without a warrant, a felony must have been committed; the person who makes the arrest must believe, and have reasonable cause to believe, that the person arrested is guilty of the offense.

2. PETITION FOR FALSE IMPRISONMENT NEED NOT ALLEGE THAT NO FELONY HAD BEEN COMMITTED.

The petition for false imprisonment, need not allege that no felony had been committed, the imprisonment being presumed unlawful.

WICKHAM, J.

This case is before the court upon a general demurrer to the plaintiff's amended petition.

The amended petition charges that on August 17, 1895, the defendant called upon William Sasser and.. Jenkins, two police officers of the city of Newark, Ohio, and made complaint to them that the plaintiff had committed a felony, to-wit: the crime of forgery, and requested, or, in the language of the petition, "ordered," said police officers to arrest the plaintiff on the charge of forgery, which the officers did, and took the plaintiff to the city prison of the city of Newark, Ohio, and confined him there for one hour; and from there they took him to the county jail, and confined him there in a cell for the period of one hour or more, when the defendant called upon the mayor of the city and said police officers and requested them to discharge the plaintiff from custody, which was done; that said arrest was made without an affidavit being filed with any magistrate charging plaintiff with a crime, and without any warrant having been issued for his arrest; that he has been damaged, by reason of the premises, in the sum of $3,000, for which he prays judgment.

It is undoubtedly the law that where a person procures the arrest and imprisonment of another unlawfully he is liable in damages for the trespass.

Truesdale v. Combs, 33 O. S., 186.

It has also been held that all persons aiding and assisting in the unlawful confining of another are responsible in damages, although they had nothing to do with the original arrest, and had no knowledge that the arrest and imprisonment were unlawful at the time they had a hand in it.

Anderson on Torts, 719, and note; Griffith v. Colman, 28 Law J. Exch., 137; Powell v. Beckner, 3 Ind., 475; Vinton v. Weaver, 41 Maine, 430; Brown v. Chadsey, 39 Barb., 263.

In the argument, counsel for the demurrer contend that the petition does not state a cause of action for the reason that it does not allege that a forgery was committed; and counsel for the plaintiff argues that the law will hold the defendant liable for the reason that the arrest was made without an affidavit being filed and warrant issued; and they refer the court to authorities that seem to support their contention. But an examination of these authorities will show that they were cases where arrest and imprisonment had been made without warrant for misdemean

Licking Common Pleas.

ors committed. There is a wide distinction between the authority of police officers and others to arrest persons charged with a misdemeanor or, felony. The law, we think, is very clearly settled as to the right of officers and others to arrest for alleged crimes.

In the State of Ohio v. Lewis, 50 O. S., 179, our Supreme Court have established the rule that a public officer may, without warrant, arrest any person found in the act of committing a misdemeanor. If, however, the officer was absent when such offense was committed, and all the information the officer had of the alleged offense was statements of bystanders who witnessed it, he has no authority in law to pursue and arrest the persons charged with the offense without first obtaining a legal warrant therefor.

Section 7130, Rev. Stat., provides that, "When a felony has been committed, any person may, without warrant, arrest another who he believes, and has a reasonable cause to believe, is guilty of the offense, and may detain him until a legal warrant can be obtained."

This section of the statute gives a private citizen the right to arrest another without warrant, and probably it would be the duty of a police officer to make the arrest, but we think, for the protection of the right of the private citizen to his personal liberty, the right of an officer or private citizen should not extend beyond the strict wording of the statute. That is, we think, before a citizen can lawfully be arrested without a warrant, a felony must have been committed; the person who makes or procures the arrest must believe, and have reasonable cause to believe, that the citizen arrested is guilty of the offense. If any of these elements are wanting, we think the citizen or officer would have no authority to arrest without a warrant.

The petition in the case does not allege that no felony had been committed, and this fact is urged by counsel for the defendant to be a fatal defect in the partition.

As we have seen under the statute, if a felony had been committed, and the defendant believed, and had reasonable cause to believe, that the plaintiff was guilty of a felony, he would be justified in causing his arrest, but unless these several facts appear, the arrest would be unjustified.

The gravemen of the trespass-false imprisonment-is the unlawful act of the defendant, but it has been held that it is not necessary for the plaintiff in his petition to aver that the imprisonment was unlawful. Imprisonment, it is said, is presumed wrongful; if there is a legal excuse for it, this is in defense. Gallimore v. Amermon, 39 Ind., 323; Carey v. Sheats, 60 Ind., 17.

It is clearly settled in this state that want of probable cause need not be averred. Spice v. Steinruch, 14 O. S., 213; Deihl v. Freister, 37 O. S.. 475.

The plaintiff then in his petition need not aver that there was want of probable cause; and there can be no difference in the plain averment of a want of probable cause, and the averment of such facts as would constitute a want of probable cause. And if the felony had been committed and the defendant believed, and had reasonable cause to believe the plaintiff was guilty of felony, he had reasonable and probable cause for arresting the plaintiff, and, as we have said, if no felony had been committed, there was a want of probable cause.

We think the plaintiff need not allege in his petition that no felony had been committed, his imprisonment being presumed unlawful; but

Licking Common Pleas.

it devolves upon the defendant to make his defense, and if a felony had in fact been committed, this would be a material part of the defendant's defense.

Another reason is that to require the plaintiff to allege and prove that no felony had been committed, would be to require him to prove a negative. It a felony had in fact been committed, and it is within the knowledge of the defendant, it would be no hardship to him to require him to establish that fact by evidence in his defense; while it would be a very difficult matter, and in certain cases an impossible thing for the plaintiff to prove that no felony had in fact been committed.

We think the petition states a cause of action against the defendant, and the demurrer should be overruled.

Carl Norpell, for plaintiff.

Fulton & Fulton, for defendant.

PARTNERSHIP-COMPROMISE-PLEADING.

[Licking Common Pleas, September Term, 1897.]

WHEELING CORRUGATING Co. v. W. A. VEACH ET AL.

1. RELEASE OF ONE PARTNER BY COMPROMISE DOES NOT RELEASE ALL. Under the statutes of Ohio a release of one partner by compromise does not operate as a release of all.

2. PETITION NEED NOT SET OUT AN ACCOUNT WHERE IT DOES NOT APPEAR THAT ANY WAS KEPT.

In an action to recover two-thirds of a bill of goods sold to a partnership: Held, that the petition need not set out an account, it not appearing that any account was ever made on plaintiff's books.

WICKHAM, J.

This cause is submitted to the court upon a general demurrer to the petition. The action is one to recover the sum of $455.33, two-thirds of a bill of merchandise sold by the plaintiff to the defendants, and one Dickinson, all of whom, at the time of the sale, composed the firm of Veach, Dickinson and Meldahl. The petition recites that after the sale and delivery of the merchandise, the firm of Veach, Dickinson and Meldahl dissolved by mutual consent, and that after the dissolution of the firm, a compromise or composition was made by the plaintiff with Dickinson, whereby upon payment by Dickinson of the sum of $227.67, plaintiffs released and discharged him from all liability to it as a member of said firm, but expressly retained and reserved the right to proceed against the defendants, Veach and Meldahl, for the balance of the debt remaining unpaid, amounting to $455.33.

Counsel for defendants contend that the release of Dickinson, as set out in the petition, operated as a release and discharge of the other two partners; that secs. 3162 to 3166, Rev. Stat., are applicable only to limited partnerships. On the other hand, counsel for the plaintiff claim the right to proceed against the two remaining partners to recover two-thirds of their claim under the provisions of those sections.

The rule at common law, that the discharge of one partner extinguished the debt, is supported by numerous authorities, but we do not think it necessary to enter into an examination of them, as the question is settled in Ohio, we think, by our statutes.

Licking Common Pleas.

The chapter in which the sections referred to are found relates to partnerships, and is divided into four parts. The first part has reference to limited partnerships; the second, commencing with sec. 3162 is headed "Discharge of a joint debtor," and is not confined to limited partnerships, but includes within the scope of its provisions all joint debtI read sec. 3166:

ors.

"The above provisions in reference to partners shall extend to other joint debtors, who may, individually, compound or compromise for their joint indebtedness, with the like effect in reference to creditors and to joint debtors of the individual so compromising, as is above provided in reference to partners."

If "partners" in these sections mean only members of limited partnerships, then "other joint debtors" would certainly include members of ordinary partnerships, or partnerships not limited.

That the provisions of these sections are applicable to all joint debtors, and are not confined to members of a limited partnership, I cite for authority the case of Walsh v. Miller, 51 O. S., 462.

It is also claimed that the petition is fatally defective for the reason that the statement contained in the petition does not set out an account. This is not an action on an account, but one to recover for two-thirds of a bill of goods sold to the defendants' firm on November 29, 1890, and it does not appear that any account was ever made on the plaintiff's books. The demurrer may be overruled.

G. C. Daugherty, for plaintiff.
Hon. S. M. Hunter, for defendants.

JURISDICTION OF STATE COURTS.

[Licking Common Pleas, September Term, 1897.]

MICHAEL SCHONBERG V. JOHN K. COWEN AND OSCAR G. MURRAY, REC'RS B. & O. R. R. Co.

STATE COURts have JurISDICTION ON ACTIONS AGAINST RECEIVERS APPOINTED BY THE Federal COURT.

State courts have jurisdiction of actions against receivers of railway companies, for injuries sustained in the operation of the road, notwithstanding such receivers were appointed by the United States Court.

WICKHAM, J.

This action is brought by the plaintiff, Michael Schonberg, against John K. Cowen and Oscar G. Murray, receivers of the Baltimore & Ohio Railroad Co., to recover for damages sustained by him in being ejected from a train, operated by the servants of the defendant.

A petition to remove the case was filed by the defendants. The petition to remove alleges that the defendants, Cowen and Murray, are receivers of the railroad company; that the matter in dispute in this case, exclusive of interest and costs, is the sum of nineteen hundred and ninety-nine dollars, and that this petition is filed prior to the time, or at the time required by the laws of the state of Ohio, or by the rules of this court, to answer or plead to the declaration or complaint of the plaintiff filed herein. That it is an action of a civil nature, between Michael Schonberg, as plaintiff, who was, at the time of the institution of this

1

Shonberg v. Receivers, B. & O. R. R. Co.

suit, and still is, a citizen of the state of Ohio, residing in the county of Licking, and the petitioners, John K. Cowen and Oscar G. Murray, receivers of the railroad company, ás defendants, each of whom at the time of the institution of this suit, and still is a citizen of the state of Maryland, residing at Baltimore City, in said state. They say that they were appointed such receivers on February 29, 1896, by the circuit court of the United States for the district of Maryland, in a suit then pending in that court, in which the Mercantile Trust Co. was plaintiff, and the railroad company was defendant. That afterwards, on March 29, 1896, a suit was commenced in the circuit court of the United States for the eastern division of the southern district of Ohio, by the said trust company against the railroad company, which said suit was ancillary to the suit originally brought in the circuit court of the United States for the district of Maryland, and that on said second day of March, 1896, your petitioners herein, John K. Cowen and Oscar G. Murray, were duly appointed receivers of railroad company. That the suit of the said plaintiff, Michael Schonberg, grows out of and originates in the operation of the said railroad, by the said John K. Cowen and Oscar G. Murray, as such receivers, and that suit being ancillary to the said suits hereinbefore referred to in which your petitioners were appointed receivers, they are entitled to remove this cause to the circuit court of the United States for the eastern division of the southern district of Ohio.

The authority cited by counsel for the petitioners to remove is found in Carpenter v. R. R. Co., 75 Fed. Rep., 850.

The first proposition of the syllabus, is as follows: "An action. against a receiver appointed by a federal circuit court, growing out of the transactions of the receiver or his employees, being ancillary to the suit in which the receiver was appointed, is within the jurisdiction of that court, regardless of the citizenship of the parties, the nature of the controversy, or the amount involved."

The second proposition of the syllabus is as follows: "Where an action against a receiver, if originally brought in a federal court, would have been within its jurisdiction as being ancillary to the case in which the receiver was appointed, it may properly be removed to that court, if first brought in a state court."

The contention of counsel is that this suit, being ancillary to the suit in the United States court, that it should be removed. There seems to be a conflict of authorities upon that question.

In High on Receivers, 391, sec. 395b, we find the following: "The common-law rule requiring leave of court before bringing an action against a receiver has been changed by act of congress, as regards actions brought against receivers of United States courts, in respect to their transactions in carrying on the business committed to their charge, as to which matters suit may now be brought without leave of court."

In a note below is given the United States statute providing that suit may be brought against a receiver appointed by the United States court, without leave of the court appointing him; and it reads as follows:

"That every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far the same shall be necessary to the ends of justice."