Miller v. Turner

BURNETT, J.

The action was for damages for false imprisonment and was tried without a jury. The court awarded the plaintiff the sum of $450, and from the judgment the appeal has been taken. The gist of the action is shown by the following allegations of the complaint: “On the twenty-first day of August,. 1918, at and in the said town, the said J. J. Turner, with force, and without any public offense having been committed or attempted in his presence by the plaintiff, and without an order, warrant, or process of any court so to do, did seize and arrest the plaintiff on a pretended charge of vagrancy and did then and there, against the will of the plaintiff, imprison him in the town jail of said town and there restrain him of his liberty for a space of five hours; that at the time of said arrest and imprisonment of the plaintiff as aforesaid, the said J. J. Turner, by virtue of his official duties as marshal as aforesaid, was the custodian of said jail and in charge of and using the same for the confinement of prisoners; that the plaintiff submitted to said seizure, arrest, and imprisonment by reason of the fact that the said J. J. Turner was then and there marshal as aforesaid, and that said J. J. Turner would not have made said arrest but for the fact that he was such marshal and claiming that a public offense, to wit, vagrancy, had been committed in his presence by the plaintiff at said time.” The action was brought against said Turner as marshal of the town of Tehama, and the sureties on his official bond.

[1]

The first point made by appellants is that a suit on such official bond will not lie in behalf of an individual. But a complete answer to this contention is found in. section 961 of the Political Code, from which it is sufficient to quote the concluding clause: “And any person so injured

[655]

or aggrieved may bring suit on such bond, in his own name, without an assignment thereof. ’ ’

The claim that the demurrer should have been sustained to the complaint is equally without merit. Therein is involved no uncertainty" or ambiguity and the facts are sufficient to constitute a cause of action.

[2]

The facts were set forth with slightly varying phraseology in three different counts. This was unnecessary, but it constitutes no cause for complaint on the part of the appellants. Without setting forth the allegations of the complaint it is sufficient to say that it contains all that is requisite under the doctrine announced in