Feld v. Loftis , 140 Ill. App. 530 ( 1908 )

Mr. Justice Brown

delivered the opinion of the court.

The plaintiffs in error in this case, in speaking of the course of the pleadings, say that “By going to trial without first procuring a rule on plaintiffs in error” (the defendants) “to file rejoinders,, defendant in error” (the plaintiff) “waived any right to complain of the lack of rejoinders.” We do not find in the argument of the defendant in error any complaint of “the lack of rejoinders,” but they do say, “Without traversing these replications, the plaintiffs in error treated them as traversed, the case at issue, and proceeded on January 23, 1907, to try the issues thus joined by a jury.”

We doubt the accuracy of each and both of these propositions. As we understand the rules of common law pleading, if the allegations of fact, or any of them, set up in a pleading are not traversed, those not so traversed are to be considered as admitted, and the pleading may be read to the jury to show them. Andrew’s Stephen’s Pleading (2d edition) page 323, note; Lettick v. Honnold, 63 Ill. 335; 1 Allen (83Mass.) 560; Holmes v. Jones, 121 N. Y. 461. Of course, however, it is only the facts which are thus admitted, not conclusions of law or mixed conclusions of law and fact. And as Mr. Justice Breese points out, in Lettick v. Honnold, 63 Ill. 335, if the facts thus admitted should have made under the law no difference to the finding or the judgment, it may be immaterial what disposition of, or ruling on, the pleading was made.

We think this was the ease as to the plaintiff’s replications in this case. • The replications of nul tiel record filed October 24, 1906, were identical with those filed November 30,1902, which were successfully and properly demurred to; for as a justice court is not a court of record, a technical plea of nul tiel record cannot, we think, be effectively used to question the existence in the hands of an officer of an execution regular in form, issued by the justice in a suit in which he has apparent jurisdiction. The existence of such an execution can of course be questioned, but not by a plea of nul tiel record of it and of the judgment on which it issued in said justice court.

It is only where justice courts are courts of record, which they are not in Illinois, that a plea of nul tiel record is proper .to question their judgments and process. Encyclopedia of Pleading and Practice, Vol. 11 (Pleas at Law-Records) page 1158. Compare on this subject Adair v. Rogers, Wright, Ohio, 428, and Silver Lake Bank v. Hardin, Chancery, Ohio, 430; Collins v. Modisett, 1 Blackford, 60; Cole v. Driskell, 1 Blackford, 16, and notes.

But even were it not so, a plea of nul tiel record is not for the jury, but to be passed on by the court. Under the circumstances of this case, the replications of nul tiel record therefore may be and would be considered as demurred to ore tenus, and not admitted when the parties went to trial.

By the refusal of the court to allow the introduction in evidence of the transcript of the proceedings had before the justice and the execution under which the defendant in error was imprisoned except in mitigation of damages, it may be considered to have indicated a decision in favor of the plaintiff on these replications. If so, we think the court erred. For reasons hereinafter stated, we think that this execution furnished a complete bar to this action against the defendants for false imprisonment, and should have been admitted without limitation as to its effect.

Passing to the replications de injuria, which were not traversed, it is hardly worth while to note that the record does not bear out the statement of the defendant in error’s brief that on October 24,1906, the plaintiff filed “two special replications to the special pleas of Joseph S. Loftis,” inasmuch as the replications are specifically confined by their terms to the third plea of Joseph S. Loftis, which was filed on November 21, 1903. As a demurrer had been sustained to the replications before filed to the second plea of Joseph S. Loftis filed July 19, 1902, this left that second plea, the substance of which is set out in the statement hereto prefixed, untraversed or avoided and therefore admitted.

But this is practically immaterial in our view, for the essential part of that plea, and of all the other special pleas of either defendant, is, we think, admitted in these words in each of the replications de injuria on file:

“It is true that the plaintiff was arrested and restrained of her liberty and imprisoned by virtue' of the execution in the plea mentioned.”

The rest of the matter in these replications, whether it be construed as setting up only the habeas corpus proceedings and their result, or as including also direct allegations as to the merits of the controversy between the plaintiff and the defendants which led to said execution and the judgment on which it was issued, is immaterial. The court refused, and rightly refused, to allow any evidence to be introduced of the habeas corpus proceedings, and whether or not this ruling was, as counsel argue, equivalent to striking the replications from the files or not does not matter. Everything contained in the replications may be assumed to be true, and the situation would not be in any respect altered. If all other considerations should be left out of account, and it also should be assumed that the discharge in the habeas corpus proceedings must have been based on the judgment of the Circuit Court that there was no jurisdiction in the justice of the peace to issue the execution on which the plaintiff was imprisoned (an assumption that we are far from actually making except for the sake of illustration) and also assumed that if the justice was without jurisdiction, the defendants must be considered, under the evidence, as the principals, whose agents were guilty of an unlawful arrest (another assumption against our actual opinion), yet even then we should not hold these habeas corpus proceedings conclusive in this case. If not conclusive, they must be immaterial as merely collateral and incidental. That they could not be conclusive we think is shown by the very fact that as there is no appeal from the decision of the court in habeas corpus proceedings, a review of the same questions of law or fact in the Appellate Courts in a direct proceeding, by appeal or writ of error, in the original suit in which the arrest occurred, or in one like this present, directly springing from it, would be foreclosed to the prosecuting plaintiff. But this is a right that cannot be denied him under our laws.

The doctrine of the case of Castor v. Bates, 127 Mich. 285, we cannot assent to as applicable to the situation in this state. That the habeas corpus proceedings were immaterial in a like case has already been decided by this court. Lowry v. Hately, 30 Ill. App. 297. This view, however, by no means conflicts with the proposition that a judgment of release in habeas corpus proceedings prevents another arrest and imprisonment for the same cause.

The disposition of these replications leaves ns to a consideration of the issues raised by the pleas of not guilty, and the pleas of the defendants, of which, as we have said, we deem the essential parts expressly admitted by the plaintiff’s replications, and which at all events, in our opinion, were sufficiently proved. The result of that consideration is that the peremptory instruction for the defendants should have been given by the court after all the evidence was heard.

The plaintiff says that the plea of the defendants of not guilty puts the mere fact of the imprisonment of the plaintiff in issue. It does more than that.

Whether or not under such a plea alone, the illegality of the imprisonment, if such imprisonment is admitted or proven, can be denied, there is no doubt that the participation or intervention of the defendant in the imprisonment itself can be controverted.

This suit is purely one for false imprisonment. It is not a suit for malicious prosecution. If it were, very different rules of law would govern it. It was, however, conceded by counsel for the plaintiff, at the trial below, in his requests for instructions, and it is conceded by his argument here, that the suit is for false imprisonment—one that must have been brought in trespass vi et armis had not the statutes abolished the distinction between trespass and trespass on the case. Keeping this in mind in considering the pleas of not guilty filed here, it must first strike us that the proof of the arrest and imprisonment does not make the defendants the actual trespassers, if there were a trespass, but a certain Edward E. Schmedling, acting as a constable, and Ernest Magerstadt as sheriff and keeper of the jail of Cook county. It was, according to the evidence, Schmedling who made the arrest and took the plaintiff to the jail, and Magerstadt as sheriff (and, as we take judicial notice, jail keeper) who held her until released by the order of the Circuit Court.

The plaintiff argues, however, that the action for false imprisonment lies “not only against the party who actually imprisoned the plaintiff, but also against any person who caused the plaintiff to be imprisoned, or aided, abetted or incited others to do it.”

Undoubtedly, the rule “qui facit per alium facit per se” prevails in this department of the law as in every other; and it is not only the person actually laying hands oh another person in the arrest or turning the lock in a cell door in the imprisonment who can be held liable, but as well one who controls, commands, assists, or in such a direct sense abets, that other. In that sense the position of the plaintiff’s counsel is sound and is sustained by the authorities he cites. But a construction of this doctrine which would practically make it abolish the difference between liability for malicious prosecution and liability for an imprisonment which was the result of process finally issuing in such prosecution, is not sound nor supported by any authority to which we have been cited which we deem well considered. On the contrary, our Supreme Court in Outlaw v. Davis, 27 Ill. 467, expressly repudiates this doctrine, and declares it intolerable and impossible. The only manner in which either of the defendants was connected by the evidence with the arrest and imprisonment was by the admitted allegations: First, that as co-partners they brought" a replevin suit before the justice, which resulted in a verdict of a jury that Mrs. Feld had fraudulently converted their property, a consequent judgment of $27.50 against her by the justice, and a capias ad satisfaciendum issued to Sehmedling, the constable; and, second, that after the constable had arrested Mrs. Feld he telephoned to S. T. A. Loftis to come to the jail and pay the board of the prisoner under the statute, and that S. T. A. Loftis appeared there and paid $3.50 to the representative of the sheriff, and by the contested allegation that when this board money was paid, the said S. T. A. Loftis said, “We will make an example of her.”

But these things did not make the defendants principals or participants in the arrest. It was the process issued by the justice, not commands of the defendants, that Schmedling and the sheriff and jail keeper were obeying. They would have very little heeded any directions of the Loftis Bros, in the absence of that process. If the process had been void, the magistrate who issued it and the constable and sheriff who obeyed it, might have been'liable in trespass vi et armis, or in case, for false imprisonment; but as the Supreme Court in Outlaw v. Davis (supra) points out, not the plaintiffs and complaining witnesses in the suit in which it issued. See, also, Wilmerton v. Sample, 42 Ill. App. 254.

For these reasons we think that the jury should have been instructed at the close of the evidence to have found for the defendants on the issues formed on the pleas of not guilty.

But if we are wrong in this, and the defendants in this suit are liable in this action, if the magistrate, constable or jailer, or any of them, would have been in a like action, we think also that the pleas of justification filed, and which would in that case have been necessary, are good.

The contention of the defendant in error to the contrary is based on the view that the process described in these pleas was void. We see no reason for holding it so. The transcript of the justice’s docket, introduced in evidence, says that on February 28, 1900, an affidavit was filed and a writ of replevin was issued. The Branch Appellate Court very properly said in Subim v. Isadore, 88 Ill. App. 96, that “it is proper to indulge in inferences in aid of the justice’s transcript in respect of the regularity and legality of the steps taken by the justice as thereon shown,” and it has been often held by the courts of Illinois, as it was in that case, that technical accuracy in transcripts by justices of the peace cannot be required.

It was not necessary to show the affidavit in full in the transcript. It is evident that what Judge Cartwright, when in the Appellate Court of the Second District, said in Wilmerton v. Semple, 42 Ill. App. 254, may be said of this writ of replevin: “It was clearly shown that it was issued on some sort of affidavit adjudged by the justice sufficient to authorize the issuance of the writ. * * * He had general jurisdiction over the subject-matter and the most that can be said is that he erred in his judgment.”

We deem none of the objections made to the introduction in evidence of the transcript of the justice well taken.

The objection of the want of the seal of the justice, made for the first time here, has been held by this court futile even when made in time. Had it been specifically made below, it could have been met. Baker v. Baker, 159 Ill. 394; Foster v. People, 121 Ill. App. 167; Kitson v. Farwell, 30 Ill. App. 341.

It was unnecessary for defendants to show more of Schmedling’s official character than that he was a de facto officer. Schlenker v. Risley, 3 Scammon 483; Schermerhorn v. Mitchell, 15 Ill. App. 418.

We are therefore of the opinion that even had the peremptory instruction asked for been justified only if the pleas in justification were proven, the defendants were entitled to it.

The judgment of the Circuit Court is therefore reversed.

Reversed.