Ceinar v. Johnston

STURTEVANT, J.

The plaintiff commenced an action against the defendants for false imprisonment. The defendants filed a joint general demurrer “to the complaint”. The record discloses that as to certain of the defendants the demurrer was overruled, but as to the defendant Johnston the demurrer was sustained. Prom the judgment entered in favor of the defendant Johnston the plaintiff has appealed. The record contains the original complaint and it also contains an amended complaint. We understand the plaintiff relies on the amended complaint and we will confine our remarks to that document.

The plaintiff alleged that on the eighth day of August, 1931, in answef to a complaint filed in the Justice’s Court of Nieasio Township, County of Marin, State of California, charging him with disturbing the peace, that he appeared

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before the defendant as justice of the peace and pleaded guilty to the complaint; that the defendant suspended plaintiff’s sentence indefinitely and entered a judgment that plaintiff’s sentence should take full force at any time that plaintiff failed to make monthly payments in the sum of $30 to his wife for the support of their son, who was to remain in the care and custody of his mother; that the plaintiff made certain payments to and including November 14, 1931; that thereafter, on March 8, 1932, the defendant, as justice of the peace, executed an abstract of the proceedings in the action theretofore commenced against him and indorsed thereon a commitment. Both documents are set forth

in haec verba.

Continuing, the plaintiff alleged that the plaintiff was arrested by the defendant Armstrong as constable, who delivered him into the custody of the defendant Sellmer as sheriff of Marin County, who received the plaintiff and incarcerated him from March 8, 1932, until March 17, 1932, the full term specified in the sentence imposed by the defendant Johnston on the eighth day of March, 1932.

In short, the allegations of the plaintiff’s complaint are that the defendant as justice of the peace first divested himself of jurisdiction and thereafter proceeded to act. However, there are two sound answers to the contention. In the first place, whoever may be charged as a defendant for false imprisonment it is necessary for the complainant to plead the facts showing that the arrest was unlawful.