Opinion
No. 4651.
April 8, 1932. Rehearing Denied May 18, 1932.
Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Action by R. Shad Bennett against Charles Ahrens, Sheriff of St. Clair County, and others. From an adverse judgment, plaintiff appeals.
Affirmed.
This is a civil action for damages growing out of an alleged unlawful arrest and detention of appellant by appellees on or about December 14, 1929. During the times referred to in the pleadings, Charles Ahrens was sheriff of St. Clair county, Ill., and Al Burkhaus, Al Petri, G.P. Meder, and William Miller were deputy sheriffs of that county. At the same times W.M. Flannigan was sheriff of Jackson county, Ill., and R.T. Christenbury was deputy sheriff of Jackson county.
Prior to December 14, 1929, an indictment had been returned against appellant by the grand jury of the circuit court of said Jackson county, charging him with the crime of conspiracy to murder and attempt to murder, and a bench warrant had issued out of said court for appellant on said indictment, and on December 14, 1929, it was unserved and in the hands of Sheriff Flannigan.
On the request of Sheriff Flannigan, and after knowledge that said warrant was outstanding and not served, appellees Burkhaus and Miller, as deputy sheriffs of St. Clair county, arrested appellant on the charge contained in the warrant. The arrest was made on the premises of the Federal building at East St. Louis, St. Clair county, Ill., but was not made in the courtroom, nor in said Federal building. They thereupon took him to Belleville, the county seat of St. Clair county, and delivered him to appellees Petri and Meder, who, as deputy sheriffs of St. Clair county, took him to Pinckneyville in the adjoining county of Perry, in Illinois, and there delivered him to appellant Christenbury, deputy sheriff of Jackson county, who, in turn, took him to Murphysboro in Jackson county, and delivered him to Sheriff Flannigan.
The acts of all appellees with relation to said arrest and detention as set forth above were in obedience to the warrant above referred to, and in committing said acts the appellees did so for and on behalf of themselves and of each other. Later, in the evening of the same day, appellant was released from custody, and taken by the sheriff of Jackson county or his agents by automobile to appellant's home in St. Louis, Mo.
At the times referred to in the pleadings, appellant was an attorney at law, and was licensed to practice in the courts of Illinois, and in the United States District Court for the Eastern District of Illinois; and immediately prior to his arrest he had been engaged as an attorney in attending said District Court at East St. Louis, Ill. At the time of his arrest he was returning from said District Court to his home in St. Louis, Mo., and was outside the Federal building, but on property belonging to the United States.
Appellant's amended declaration consists of two counts, and he later filed an additional count. The first count charges that appellant was arrested while attending court as an attorney at law in the federal court at East St. Louis, and that he was transported to Belleville and thence to Murphysboro without any reasonable or justifiable cause.
The second count does not refer to the fact that at the time of his arrest he was an attorney at law, or that he was or had been in attendance at court, but merely charges that he was arrested in said Federal building and taken to the sheriff's office in East St. Louis.
The additional count alleges that appellant was at the times complained of a duly licensed attorney at law, and admitted to practice in the courts of Illinois, and also in the federal court for the Eastern District of Illinois; that as such attorney he was then in attendance at said District Court, and while he was then and there in the act of returning to his home he was arrested and imprisoned by appellees in violation of section 9, c. 13, Smith-Hurd Statutes of Illinois (1929); and that said arrest and imprisonment were unlawful and malicious, and were made with knowledge on appellees' part that appellant was privileged from arrest.
Appellees pleaded the general issue, and also filed special pleas in which they alleged that the sheriff of St. Clair county and his deputies acted on the request of the sheriff of Jackson county under a warrant issued by the circuit court of Jackson county on an indictment against appellant charging him with the crime of conspiracy to murder and attempt to murder.
To appellees' special pleas appellant filed a demurrer, and it was overruled, and he thereupon filed a replication in which he alleged (1) that the warrant, being addressed to the sheriff of Jackson county, did not authorize appellees, or any of them, to arrest appellant in the Federal building or on property of the United States government, and that it did not authorize the sheriff of St. Clair county, or his deputies, to arrest him in St. Clair county; (2) that appellees, at the time of appellant's arrest, knew that he was an attorney at law and returning home from attendance at the federal court of East St. Louis, and that he claimed his privilege of freedom from arrest, and that appellees, disregarding said privilege, willfully and maliciously arrested and imprisoned him, and that under said circumstances the warrant did not authorize said arrest or imprisonment; and (3) that said warrant did not authorize appellees to transport and convey appellant, while he was so arrested and imprisoned, through the state of Missouri.
To these several paragraphs of replication a demurrer was filed and sustained. Appellant refused to plead further, and appellees withdrew their pleas of general issue, and moved the court for judgment against appellant in bar of further action, which motion was granted, and judgment entered accordingly.
R. Shad Bennett, of St. Louis, Mo., for appellant.
P.K. Johnson, of Belleville, Ill., and John W. Freels, of East St. Louis, Ill., for appellees Ahrens and others.
C.E. Pope and H.F. Driemeyer, both of East St. Louis, Ill., for appellees Flannigan and another.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
The technical questions of pleading raised by appellees are perhaps not without merit, but we are disposed to lay them aside and proceed to the contested issues raised by appellees' demurrer to appellant's replication.
Appellant contends that the sheriff of St. Clair county was not empowered to execute a warrant directed to the sheriff of Jackson county. In his declaration, and also in his replication, appellant alleges that in doing all the things complained of with relation to this transaction appellees were acting for and on behalf of themselves and on behalf of each other. His contention in this respect is without merit, under paragraph 694, c. 38, Cahill's Revised Statutes Illinois.
Appellant next contends that inasmuch as he was an attorney at law the warrant referred to did not authorize appellees, or any of them, to arrest him when returning to his home from his engagement in the capacity of such attorney in the federal court.
The fact that appellant was exempt from arrest by virtue of his privilege as an attorney returning from court (sec. 9, c. 13, Smith-Hurd Illinois Stat.) does not make the officer or officers arresting him liable for false imprisonment. Appellant's only remedy is to apply to the court for his discharge from the arrest. The privilege is one which he may exercise or waive; hence the arrest under such circumstances is voidable rather than void. State ex rel. Isenring v. Polacheck, 101 Wis. 427, 77 N.W. 708; Carle v. Delesdernier, 13 Me. 363, 29 Am. Dec. 508; Chase v. Fish, 16 Me. 132; Smith v. Jones, 76 Me. 138, 49 Am. Rep. 598; Winchester v. Everett, 80 Me. 535, 15 A. 596, 1 L.R.A. 425, 6 Am. St. Rep. 228; Willard v. Sperry, 1 Wend. (N.Y.) 32; Secor v. Bell, 18 Johns. (N.Y.) 52; Tarlton v. Fisher, 2 Douglas (K.B.) 672; Cameron v. Lightfoot, 2 W. Bl. (K.B.) 1190; Cameron v. Bowles, 2 W. Bl. (K.B.) 1195; Belk v. Broadbent, 3 Term Rep. (K.B.) 183; Yearsley v. Heane, 14 M. W. (Eng.) 322. Appellant has cited no authority to the contrary, nor are we able to find any in support of his contention where the warrant was valid and issued by a court of competent authority.
Appellant insists, however, that malice on the part of appellees in making the arrest, as alleged in his replication, is sufficient to render appellees liable for damages.
In 25 Corpus Juris, 457, it is stated: "Ordinarily exemptions from arrest are construed to create a personal privilege, and when so construed it is the general rule that an action for false imprisonment does not lie for the arrest of a person so exempted, either against the party instigating the arrest, or the officer making the arrest. In harmony with the general rule that malice or bad motives are not material considerations in this form of action as distinguished from an action for malicious prosecution, it is usually held that, where the arrest is made pursuant to valid process of arrest, knowledge that the arrested party is privileged does not impose liability."
It is likewise held in Magnay v. Burt, 5 Q.B. 380, 7 Jur. 1116, that a sheriff acting in obedience to a valid warrant in making an arrest cannot be charged with malice.
It is insisted by appellant that, although the warrant in controversy was valid in every respect, its service upon him by appellees was unlawful while he was upon property of the United States government. He cites no authority in support of this contention, and we think that his position is not supported by either authority or reason.
Appellant also insists that his replication was sufficient to repel appellees' demurrer because of the fact that appellees transported and conveyed him to his home in St. Louis, Mo.
A demurrer admits only such facts as are well pleaded, but it does not admit arguments, inferences, or legal conclusions in the pleadings. Ross v. Clark, 225 Ill. 326, 80 N.E. 275; Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85; Big Creek Coal Co. v. Tanner, 303 Ill. 297, 135 N.E. 433. We find no allegation in appellant's replication that appellees conveyed appellant into or through the state of Missouri while he was under arrest.
We find no error in the record.
Judgment affirmed.