Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-07-02

had ! asset slid premises from the mort
gag'r~, his father Ira ID. Wines acting ~
their agent therein: that on the dav of re-
~spondents entry and prior to said entry.
defendant Eugene Wines entered the
premises and did some work in cleaning
up the dwelling hons preparatory 10
moving in subsequently,; that defendants
demanded the possession Of the prem
lses from the respondent, but he refused
10 surrender the possessions; that in the
enforced absence of the respondent under
said warrant of arrest, Eugene Wise en-
tered and took possession Of said prem
ises and kept the same.
Defendant, Ira D. Wines, testified in the
action at bar in the trial court to the
effect that in bringing said action against
the respondent he merely wished to get
him off of the premises in A legal wav:
that he did not have him arrested in order
to get him off the premises for the time
beng so that his son could take pos
session daring respondents absence. but
because respondent had taken torcible
and unlawful possession Of the ope
and was forcibly and unlawfully holding
it while it was in his, the defendants.
charge.
F1"m the foregoing we think it clearly
appears that the object the defendant had
in view in bringing said action gains
the respondent was the protection or en-
torcoincnt of a private statutory right.
which they claimed was given them by
said statute relative to t~orcinle entries
and unlawful detainers: that they pro-
cee'ted on their own account and foy
heir own benefit, aud were nj prosecu-
tors for al ottense against the public.
The acts charged against the respondent
do not constitute a pubic oftense under
said statute. In a proper action for forci-
BILE entry or unlawful d~etainer the plain
tiff may haNa The defendant arrested and
held 10 bail upon certain conditions as in
said Act specified, the same as in an
action under the Civil Practice relating
TO arrest and bail
Where the statute cOnfers upon a court
or magistrate the power to issue a war
rant of arrest in a civil case upon cerlain
showing to I've made by affidavit or veri-
fed complaint. the statute being in der
SNN'HA ~ PEfN'ha14 tI'Sl ~ Slth $40 ing
is a condition precedeutto the ISSUANCE Of
such warrant, and a warrant of arrest
predicated on fidavit or complaint
which does not contain the requisite
showing is void for want of legal author
lty in the court or magistrate to issue il
ana an arrest hereunder is Illegal, max
ing the person obtaining such warrant
maple IN damages for false Imprisonment
IN an action by the person so arrested.
Spice VS.. S%teinruck. IA Ohio St. 2l3;
Hauss We, kohlor, 25 Kansas. GAO: Won
kettler vs. Johnson, 66 III. %; Cody VS..
Adams, Gray. SO; AM 4 Eng, Ency. of
Law, $50, and note.)
Where the object in view is the pro-
tectlen or an enfOrceme nt Of q private
right, and a warrant is procured where
none is authorized and an arrest made.
the individual procuring it and all others
participating are held liable. Teal vs.
Tissel, 2S Fed. Rep. 35l.)
The above rule is s~ecognized III Clifford
VS. Virgins, is L. 4. A. 356. and in many
other cases.
! 1t is not essential in an action for false
imprisonment to allege or prove malice
or want of probable cause in order to
recover damages for injuries actually oc-
casioned thereby.
Painter vs.. Ives, + Neb. 10, and eases
cited; Cutler VS.. Lower, So Ind. 265: Law
sons Rights 4 Remedies, Sec. 1879 and
cases cited.
Petitioner says: The jury were told
that the question as whether Strozzi was
a trespasser or who owned the property
was immaterial About all the evidence
given by the defense was on these very
points; it tended to show that StrOzzi did
not own the property, that witness Wines
was i'll possession of the same, that
Strezzi forcibly and u~nlawfulIy entered
it. The jury were told in effect that all
this testimony was immaterial and had
nothing to do with the case" And he in
sists that this was error.
We answer first: that neither party
claimed 10 own the property. Strozzi
claimed the right TO enter under his
mortgage given by the owners of the
property and Eugene Wines claimed
under a lease from the wne If it be
admitted that Strozzi fOrcibly and un-
lawfully entered the premises or
forcibly and ~nnlawfully held pos
session, this did not justify his
arrest under said statute. as it
was not all, ged or shown that he did so
fraudulently. If the action against StrOzzi
! had been brought in a court of competent
jurisdiction tie issuing of a warrant of
arrest on the showing made would have
been Unauthorized and his arrest illegal.
Rehearing denied.
Massey, J. did not participate IN the
decision.
Filed June %. 1899.
EUGENE HOWELL,
Secretary of State and EX-OfficiO Clerk
of the Supreme Court.
Filed with printer for publication
June %. 1899.