Opinion
No. 32358
Decided March 14, 1951.
False imprisonment — Liability where complaint fails to state an offense — Affidavit and warrant "voidable," not "void."
CERTIFIED by the Court of Appeals for Hardin county.
This action was instituted against a justice of the peace, a special constable and an affiant to recover damages for an alleged false arrest. Plaintiff alleges in his petition that defendants conspired to procure, under color of office, and did procure the false, wrongful and illegal arrest of plaintiff, and that the arrest was "wanton and wilful" and was made "solely for the purpose of collecting an amount claimed owing" one of the defendants from plaintiff.
The affidavit filed with the defendant justice of the peace, on which the warrant for arrest was issued, recited that plaintiff "did take and dispose of 162 bales of timothy hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to Section 13104 of the Ohio General Code which states the penalty for obtaining property under false pretenses."
Trial was had to a jury which returned a verdict for plaintiff, on which judgment was rendered.
The Court of Appeals reversed the judgment of the trial court, rendered final judgment for defendants and remanded the cause to the trial court for execution of the judgment, on the ground that the affidavit and warrant upon which the imprisonment of plaintiff was based were "voidable" and not "void" and that plaintiff had no cause of action against defendants.
The judges of the Court of Appeals, finding the judgment, upon which they agreed, to be in conflict with the judgment in the case of Kuhn v. McNeal, 41 Ohio App. 485, 181 N.E. 153, certified the record of the case to this court for final determination.
Mr. C.A. Faulkner and Messrs. Kaylor Kaylor, for appellant.
Mr. Frank Wiedmann and Messrs. Roof Roof, for appellees.
The judgment of the Court of Appeals is affirmed on authority of Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451, L.R.A. 1918F, 1132.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.