Donati v. Righetti

TAGGART, J.

Action for false imprisonment and malicious prosecution. Judgment for defendant on demurrer as to first cause of action and on verdict on the second cause. Plaintiff appeals from judgment and from order denying motion for a new trial.

Both causes of action are stated in substantially the same language, except that in the second count there is the additional allegation that in procuring the arrest and imprisonment of plaintiff defendant acted maliciously and without probable cause. The complaint shows that plaintiff and defendant quarreled with each other in the city of San Luis Obispo; that a constable of the township made complaint in the justice court of that township against plaintiff for disturbing the peace, and upon this complaint plaintiff was arrested and fined and paid his fine. Pour days later defendant procured the arrest of plaintiff upon a complaint filed by him in the justice court of Arroyo Grande township (fourteen •or sixteen miles distant from San Luis Obispo), stating the same facts and offense as that to which plaintiff had pleaded guilty in San Luis Obispo, and alleging the offense to have

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been committed on the same date. It is also alleged that all the facts relating to the arrest in San Lids Obispo were known to defendant at the time he made the complaint before the justice at Arroyo Grande.

The two causes of action, false imprisonment and malicious prosecution, are quite distinct and different and to be distinguished in several respects. False imprisonment is the unlawful violation of the personal liberty of another. (Pen. Code, sec. 236.) It is the unlawful arrest or detention of a. person without warrant, or by an illegal warrant, or a warrant illegally executed. If the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. (8 Ency. of Pl. & Pr., p.

841; Neves

v.

Costa,

5 Cal.App. 117, [89 Pac. 860].)

There is nothing in the complaint before us to show that the warrant issued by the Arroyo Grande justice was either void, voidable or irregular. In the absence of contrary allegations, we must assume that the complaint stated facts proper to give the justice jurisdiction. The arrest and imprisonment, then, was made in the legal execution of a warrant which issued as the result of regular judicial action by a justice having jurisdiction. The fact that plaintiff had been arrested before did not make the arrest or imprisonment unlawful. In the course of the proceedings upon the complaint this fact, like any other plea, was a matter of defense to be set up by the party charged. The prosecution being dismissed upon this ground did not operate retrospectively to annul or render unlawful the arrest upon the legal process. The fact that the defendant intentionally withheld his knowledge of the prior arrest from the justice would only tend to establish malicious motives and bad faith. These are not allegations material to-an action for false imprisonment, and, although evidence thereof may aggravate the damages, they have nothing to do with the cause of action.