Pratt v. Page

By the Court, Oole, J. Before this cause was reached for argument on the calendar, a motion was made to dismiss the appeal, on two grounds: 1st, Because the order denying the [342] motion to vacate the order of arrest was not appealable ; and 2d, Because the party had waived or lost bis right to appeal— if the order was appealable — by complying with its conditions and giving bail. This motion was overruled, but no opinion was filed when the motion was disposed of, and therefore it has been thought proper to briefly state our views upon it here. The question involved is one of practice, and doubtless 'of considerable interest to the profession. We are clearly of the opinion that this is an appealable order under our statute. An order to arrest and bail is what is denominated a “ provisional remedy,” and the appeal act, in prescribing what orders may be brought to this court by appeal, expressly names one which grants, refuses, continues or modifies a provisional remedy. Chap 164, Laws of 1860, section 10, subd. 3. An order denying a motion to vacate the order of arrest, in effect, of course, continues the original order. 8 How. Pr. R., 353. As little ground is there for claiming that a party waives or loses his right to appeal from such an order, by complying with its conditions and giving bail. Even paying a judgment, or collecting the money due thereon by fi. fa., has been held to be no ground for setting aside or staying proceedings on writ of error. Clark v. Ostrander, 1 Cowen, 437; Dyett v. Pendleton, 8 id., 325; Clowes v. Dickinson, id., 328. Of course, where a party agrees not to prosecute his appeal, or waives his right by acquiescing in the order and accepting some benefit or advantage under it, then it would be contrary to good faith to permit him to go on and have it reviewed. No such thing exists here. The party had to comply with the order or go to jail. And there is no reason for saying that because he did comply with it and give bail, he tacitly or expressly acquiesced in its correctness, and waived his right to have it reviewed. This brings us to a consideration of the appeal on the merits — whether the affidavit upon which the original order was granted shows, in the language of the statute, “ that a suffic [343] ient cause of action exists ” for bolding the appellant to bail. We think it does not. In respect to the first cause of action set forth in the affidavit, whether it be considered as one for a malicious arrest and prosecution, or one for an abuse of criminal process, it clearly appears that the cause of action accrued more than six years before the commencement of this suit. That being so, the action was barred by the statute of limitations. It is claimed that possibly our statute of limitations (chap. 188, sections 17 and 19) was intended to bar these actions within two years from the time the action accrued. However this may be, there can be no doubt they are barred by the lapse of six years. Now it appears that the respondent was arrested in the state of Iowa, on the first requisition mentioned in the affidavit, sometime in the month of January, 1857, and that he procured his release from restraint and imprisonment about the 19th day of that month, by paying the appellant four hundred dollars in money, and executing and delivering him his seven promissory notes, secured by a mortgage, which notes were payable and were paid at different times in the three next ensuing years. If there was any cause of action growing out of these transactions, is it not apparent that it must have been perfect and complete when the acts -or things were done which gave rise to it? If there was any malicious arrest and prosecution, or any abuse of criminal process, it must have occurred on or prior to the 19th of January, 1857. This, it appears to us, must have been the case, unless the suggestion can be maintained, that the cause of action was not then fully complete, or, if it was, that it was in some manner renewed, continued or kept alive by subsequent payment of the notes. But how the payment of the notes can have any relation to or connection with the wrongful arrest or the abuse of process, we have been unable to comprehend. So far as those acts were concerned, they were distinct, independent, complete, when performed. The acts were wrong when done, if they ever were, and did not acquire the charac [344] ter of illegality from something transmitted to them by payment of the notes. Indeed, the matter of the payment of the notes is in our view entirely immaterial. It does not affect the original transaction a particle. The cause of action arose out of acts done by the appellant on or before the 19 th day of January, 1857, if any ever existed. And the period of limitations began to run from this time, and not from some subsequent date at which the wrongdoer received the fruit of his iniquity. If this view be correct, it follows that the first cause of action set forth in the affidavit was barred by the statute of limitations. And we are not to assume that the appellant will not take advantage of the statute and avail himself of every legal defense. The affidavit, certainly, upon its face, should state facts showing “ that a sufficient cause of action exists,” and not one barred by the period of limitation. We have great doubt about the second branch of the affidavit stating any cause of action whatever. The respondent was not arrested upon that requisition, nor does he show that he was in any manner injured or damnified by it. But besides all that, he does not show that the indictment has been disposed of, and that the prosecution is at an end. This objection, of course, is common to both causes of action ; but we have relied upon the statute of limitations in respect to the first, because it furnishes a complete answer to any possible view which could be taken of the case. And the numerous authorities cited on the brief of the counsel for the appellant show that the law is equally well settled, that in actions of this kind it must appear that the proceedings are legally at an end. Nor do we think the rule is different where it appears that the indictment was found in a sister state. However it might be held if it appeared that the indictment was found in a foreign country, no reason is perceived why, under the provisions of the federal constitution and laws of congress for the rendition of fugitives from justice in one state found in another, and the authentication of records and judicial proceedings, it should [345] not be shown that the prosecution complained of was at an end. We think the order of arrest should have been vacated. The order of the county court, refusing to grant the motion to vacate the order of arrest, is reversed, and the cause remanded for further proceedings in conformity to this opinion.