Malone v. Carey

TYLER, P. J.

Action for damages for false imprisonment. Defendants are officers of the town of Emeryville and their official bondsmen, to wit, J. L. Kennon, city judge; E. J. Carey, chief of police; J. J. Carey, assistant chief; Paul Lees, city clerk; and A. Sargent, police officer. The second amended complaint alleges in substance that the defendant E. J. Carey, while acting in his official capacity as chief of police, through the agency of J. J. Carey, his assistant, swore to a complaint against plaintiff for the violation of a traffic ordinance of Emeryville; that defendant J. L. Kennon, city judge, without jurisdiction of the person or subject-matter, issued a warrant on said eom

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plaint, which warrant was delivered 'to the police department of the city of Richmond with instructions to apprehend plaintiff and hold him for the Emeryville authorities under and by virtue of said warrant. Pursuant to such instructions plaintiff was arrested by the Richmond police department at approximately 5:50 P. M. on the evening of January 11, 1935, and held until 7:25 P. M. of the same day, at which time he was delivered to the custody of defendant A. Sargent, a police officer of the town of Emeryville, then and there acting in his capacity as such officer under the direction of defendant E. J. Carey, chief of police of Emeryville. Such complaint further alleges that defendant A. Sargent returned to Emeryville with plaintiff, whereupon, discovering that an error had been committed in the arrest, defendants, police authorities, released plaintiff from custody. It is charged that the complaint was false and untrue in that plaintiff had theretofore, in November, 1934, appeared before said city judge and pleaded guilty of the offense charged and had been fined the sum of $2 by said city judge, which fine was ^satisfied and paid by manual labor, such labor -being imposed by the judge, defendant being without funds, It is then alleged that the complaint upon which the second arrest was made was false and untrue and void; that it was erroneously, irregularly and illegally issued, and the subsequent arrest and imprisonment under the complaint and warrant were wrongful and unlawful, all of which facts defendants and each of them well knew. Damages were claimed in the sum of $5,000. A demurrer to the second amended complaint was sustained with ten days’ leave to amend. Plaintiff refused to amend and judgment was entered in favor of defendants. Plaintiff appeals from the judgment.