Fong v. Sternes

Hayne, C. Appeal from an order refusing a change of venue. The complaint avers in substance that the plaintiff was unlawfully confined and restrained of his liberty by the defendant at Nevada township, Nevada County, California; that a writ of habeas corpus was duly issued to the defendant by the superior court of Nevada County, commanding him to produce the body of the plaintiff at a specified time and place; that said writ was served upon the defendant while he had the plaintiff in his custody and under his control, but that defendant refused and still refuses to obey the said writ; and that “ by reason of the aforesaid acts and doings of said defendant, plaintiff has been unlawfully' imprisoned and restrained of his liberty by the defendant for the period of five days, and has suffered damages and injury in the sum of five thousand dollars.” The prayer was for judgment for that sum, and costs. The motion was for change of venue to Sutter County, on the ground that that was the residence of the defendant.

If the action is to be regarded as an action for false imprisonment, the defendant was entitled to have the case sent to Sutter County. If, however, it is to be regarded as an action for the recovery of a statutory penalty under section 1505 of the Penal Code, which provides, in relation to writs of habeas corpus, that “ if the officer or person to whom such writ may be directed refuse obedience to the command thereof, he shall forfeit and pay to the person aggrieved a sum not exceeding five thousand dollars, to be recovered by an action in any court of competent jurisdiction,” then the retention of the case in Nevada County was proper, under section 393 of the Code of Civil Procedure, which provides that [32]actions “ for the recovery of a penalty or forfeiture imposed by statute ” must be tried in the county where the cause of action or some part thereof arose, subject to the power of the court to change the place of trial in proper cases.

We think that the complaint states a good cause of action for false imprisonment. The allegation that the plaintiff was “confined and restrained of his liberty by the defendant” is an allegation of physical and bodily restraint, which would serve as a foundation for the old action of trespass vi et armis. In such an action it is not necessary to aver—as would be necessary in an action for malicious prosecution — that the imprisonment was malicious or without probable cause. (Colter v. Lower, 35 Ind. 286; 9 Am. Rep. 735; Carey v. Sheets, 60 Ind. 20, 21; Akin v. Newell, 32 Ark. 605.) It is not even necessary to allege that the imprisonment was unlawful (though that is alleged here). If matter of justification exists, it must be pleaded by the defendant. “ Whoever assaults or imprisons another (except in some cases under particular statutes . . .. .) must justify himself by showing specially to the court that the act was lawful.” (1 Chitty on Pleadings, 16th Am. ed.,