1. An action in tort and one in contract can not be joined in the same petition. Where neither count of a petition alleged facts showing a joint liability either in tort or in contract against all of the defendants therein named, the court did not err in sustaining the special demurrers of the defendants, that there was a misjoinder of parties and of causes of action.
(a) Where the court sustains demurrers of all of the defendants residing in the county in which the action is pending, and dismisses the action as to these defendants, it is not error thereafter to sustain a general demurrer of the remaining defendant, who resides in another county of this State, and dismiss the action as to him.
2. Where the judgment of the trial court sustaining certain demurrers of the defendants and dismissing the action is affirmed, it is not necessary for this court to pass on the exceptions taken to the judgment of the trial court sustaining other grounds of the defendants' demurrers.
DECIDED SEPTEMBER 13, 1947. Frank A. Jackson sued Ed Norton, a resident of DeKalb County, H. T. Mozeley, the Sheriff of Stephens County, and Fidelity Casualty Company, the surety on his official bond, and A. B. Foster, the Sheriff of Fulton County, and Standard Surety Casualty *Page 651 Company, the surety on his official bond, in the Superior Court of Fulton County. The petition sought to recover damages for an alleged false or malicious arrest and false imprisonment by the individual defendants when the plaintiff was arrested in Clayton County by the defendant Norton and incarcerated in the common jail of Fulton County by the defendant Foster and in the common jail of Stephens County by the defendant Mozeley, under the contention by those defendants that he was an escaped convict from Stephens County. The plaintiff alleged that he was not the man wanted by the defendants, and sought to recover $10,000 as damages for false arrest and false imprisonment. It was further alleged that the tortious acts of the defendants Foster and Mozeley constituted a breach of the condition of their official bonds, and that by reason thereof the sureties on these bonds were likewise liable to the plaintiff.
The defendants, Mozeley and the surety on his official bond, and Foster and the surety on his official bond, filed numerous general and special demurrers to this petition. Among the grounds of special demurrer were: (1) that false arrest and false imprisonment gave rise to separate causes of action and could not be joined in the same count of a petition; and (2) that there was a misjoinder of causes of action and of parties defendant.
The trial judge sustained these and certain other grounds of special demurrer, with the right to the plaintiff to amend within twenty days. Within the time prescribed, the plaintiff amended his petition by striking the averments of false arrest from the petition and adding a second count, wherein he sought to recover damages from the defendants for a false or malicious arrest. The plaintiff also amended his petition in other ways, which are not material to the issues now involved in this appeal.
After the petition had been amended, the defendant Norton filed general and special demurrers to the amended petition, and the other defendants renewed their original grounds of demurrer and urged additional grounds of demurrer against the amended petition.
The trial judge entered a judgment that the amendment did not comply with the terms of the original judgment on the demurrers, and sustained all grounds of general and special demurrer of the defendants, Mozeley and the surety on his bond and Foster and *Page 652 the surety on his bond. The court then held that, as it appeared that Norton was not a resident of Fulton County, there was no resident defendant remaining in the petition, and he sustained the general demurrer of this defendant, and dismissed the action. To this judgment, the plaintiff excepted. 1. In count 1 of the amended petition, the plaintiff contends that he was unlawfully deprived of his personal liberty by the defendants, Norton, Foster, and Mozeley, by being arrested and confined in the common jails of Fulton County and Stephens County to his injury and damage. "False imprisonment consists in the unlawful detention of the person of another for any length of time, whereby he is deprived of his personal liberty." Code, § 105-901. "If the imprisonment is the act of several persons, they may be sued jointly or separately, and if jointly, all shall be responsible for the entire recovery." § 105-903. Also, seeHolliday v. Coleman, 12 Ga. App. 779 (78 S.E. 482);Vlass v. McCrary, 60 Ga. App. 744, 748 (5 S.E.2d 63). As against the defendants, Norton, Foster, and Mozeley, the petition clearly set out a cause of action in tort for false imprisonment. However, it was not alleged that the defendants, Fidelity Casualty Company and Standard Surety Casualty Company, participated in any way in the illegal imprisonment of the plaintiff; and, if the action is one in tort, these defendants are not proper parties to the action and should have been stricken when objection was made by timely special demurrers.
The bonds given by the two defendants, Mozeley and Foster, as sheriffs of their respective counties, were conditioned by law "for the faithful performance of their duties as sheriffs, by themselves, their deputies, and their jailers." Code, § 24-2805. While false imprisonment may constitute a tort, it also constitutes a breach of the condition of a sheriff's official bond, where the imprisonment is done by such sheriff under color of and by virtue of his office as sheriff. In this connection, see Standard Surety Co. v. Johnson, 74 Ga. App. 823 (41 S.E.2d 576), and citations. "In a suit *Page 653 on a sheriff's official bond, brought jointly against such sheriff and the surety on said bond, for an alleged wrongful act committed by him or his lawful deputy colore officii, `the fact that a tort by the officer is disclosed does not render the action one ex delicto.' Copeland v. Dunehoo, 36 Ga. App. 817,820 (138 S.E. 267)." Carlan v. Fidelity Casualty Co.of New York, 55 Ga. App. 271 (2) (190 S.E. 47). If count 1 be treated as an action ex contractu for a breach of the condition of the official bonds given by Foster and Mozeley, as sheriffs of their respective counties, then the defendant Norton, who is not a party to either bond, was an improper party defendant and should have been stricken when objection was raised by timely special demurrers that there was a misjoinder of parties and of causes of action. Morris v. Swain, 23 Ga. App. 430 (98 S.E. 358).
It is well-settled law that a false or malicious arrest is a tort for which an action will lie in damages. "An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested." Code, § 105-1001. The provisions of law relative to false or malicious arrest are intended to protect and remunerate those who have been wantonly abused under color of authority. Fire Association ofPhiladelphia v. Fleming, 78 Ga. 733, 735 (3 S.E. 420). A person has a cause of action against an officer who arrests him, where the arrest is not made in good faith and is arbitrary and illegal on the part of such officer. McDonald v. Lane,80 Ga. 497 (5 S.E. 628). "Whoever arrests or imprisons a person without a warrant is guilty of a tort, unless he can justify under one of the exceptions prescribed by law." Piedmont HotelCo. v. Henderson, 9 Ga. App. 672 (3) (72 S.E. 51). An illegal arrest is a tort for which an action will lie. Hines v.Adams, 27 Ga. App. 157 (107 S.E. 618). If the plaintiff's action in count 2 of the petition be treated as one in tort, then the two surety company defendants were not proper parties to the action, as there are no facts alleged showing that either of these defendants participated in any way with the alleged false arrest of the plaintiff, and these defendants should have been stricken when objection was raised by special demurrer that there was a misjoinder of parties and of causes of action.
While a false or malicious arrest may be a tort, it is likewise a breach of the condition of a sheriff's official bond, where the false *Page 654 or malicious arrest is done colore officii. In this connection, see Standard Surety Company v. Johnson, supra. If count 2 of the petition be treated as an action ex contractu for an alleged breach of the conditions of the official bonds of the two sheriffs, then Norton, who is not a party to either bond, was an improper party defendant and should have been stricken when objection was raise by timely special demurrers.
An action in tort and one in contract can not be joined in the same petition. Each count of the petition in the present case was fatally defective, in that neither count alleged facts showing a joint liability in either tort or in contract against all of the defendants therein named; and the trial judge properly sustained the special demurrers of the defendants, that there was a misjoinder of parties and of causes of action. Upon the failure of the plaintiff to amend his petition to meet the grounds of special demurrer of the defendants, Mozeley and the surety on his official bond, and Foster and the surety on his official bond, the court did not err in dismissing the action as to these defendants. It then appearing that the Superior Court of Fulton County was without jurisdiction of the remaining defendant, since he resided in another county of this State and there was no resident defendant in Fulton County, the court did not err in sustaining the general demurrer of the defendant Norton and in dismissing the action as to him.
2. Since the judgment of the trial court dismissing the action is being affirmed for the reasons set out in division 1 of this opinion, it is not necessary to pass on the exceptions taken to the judgment sustaining the other grounds of the demurrers to the petition. Lovell v. Drake, 60 Ga. App. 325, 326 (3 S.E.2d, 783).
Judgment affirmed. Felton and Parker, JJ., concur.