The respondent brought action to recover damages of the appellant corporation for alleged false imprisonment.
There was a demurrer to the complaint based on the ground that it does not allege "that the Court Order of Arrest therein complained of has ever been vacated, quashed, set aside or rescinded and that the continuance in full force and virtue of such order constitutes a complete and adequate bar to the present action." The demurrer was overruled. The defendant answered, setting up, among other defenses, the same question made by the demurrer, and the case went to trial. In orderly sequence there were motions by defendant for nonsuit, directed verdict, and new trial, all of which were denied; the verdict was for plaintiff. The appeal from the judgment entered on the verdict stands upon several exceptions, not all of which need be specifically considered.
It appears to this Court that the fundamental error of the trial Court lies in the fact that the Court treated the action as one for false arrest. It is true that in Paragraph 13 of the complaint it is alleged that defendant "falsely, fraudulently, wilfully and maliciously obtained from a Court with absolutely no jurisdiction whatever an order of arrest and thereupon caused the plaintiff to be imprisoned in the county jail of Richland County, * * * and there kept imprisoned under said order," etc. So much by way of recital of causes. When it comes to the effects, the things for which plaintiff demands relief and claims judgment, he states in the fourteenth paragraph of his complaint: "That as a direct and proximate result of the said highhanded, wilful, unwarranted and malicious false imprisonment by the said defendant has suffered and sustained great physical pain and injuries, inconvenience, discomfort, loss of time, expenses, mental suffering, humiliation, disgrace, embarrassment, and publicly branded as a person guilty of *Page 25 larceny. Suffered the shame and humiliation and embarrassment of being arrested and taken away to jail in the presence of numerous persons on one of the thickly-populated streets of the City of Columbia, S.C. and by reason thereof has suffered and sustained damages in the sum of Ten Thousand Dollars."
The plea is unequivocally placed by plaintiff on the ground of his false imprisonment and not on the ground of his false arrest. Nevertheless the presiding Judge tried the case and submitted it to the jury solely on the theory that it was an action for false arrest or malicious prosecution.
The material difference between an action for false arrest or malicious prosecution and one for false imprisonment is thus stated:
To sustain an action for damages for malicious prosecution, which is synonymous with false arrest in a civil action founded upon a charge of crime, since the arrest is the first step in the prosecution, the plaintiff must prove three things: (1) That there was no probable cause to charge him with a crime; (2) that the prosecution was prompted by excess malice toward him; (3) that the prosecution was ended before the civil action was begun. See Stoddard v.Roland, 31 S.C. 342, 9 S.E., 1027; Hogg v. Pinckney,16 S.C. 387, 395; China v. Rd. Co., 107 S.C. 179,92 S.E., 335.
In order to maintain an action for false imprisonment, plaintiff must prove that he was arrested and imprisoned without lawful process or authority. The applicable law is thus stated in the case of McConnell v. Kennedy, 29 S.C. 180,7 S.E., 76. In that case plaintiff alleged in his complaint that "defendant maliciously, and with intent to injure the plaintiff, caused and procured the arrest and imprisonment of the plaintiff `without probable cause, and without any right or authority.'"
Note the similarity in the allegations of the complaint in that case and those in the case before us. *Page 26
As to the former case this Court said: "If the action is to be regarded, as we think it must be, as an action for false imprisonment, and the plaintiff, by his testimony, has shown that the arrest and imprisonment of which he complains was made under legal process, regular in form, and lawfully issued and executed, then he has proved himself out of Court by showing that there was no false imprisonment, and hence that he had no such cause of action as that upon which his complaint was based. It seems to us that the gistof the action for false imprisonment is that one has beenrestrained of his liberty without lawful authority; and, whereit appears that the restraint or imprisonment complainedof is under lawful process, the action must necessarily fail.It is quite true that one arrested and restrained of his liberty,even under lawful process, may have a cause of action, ifit is alleged and shown that the prosecution was malicious,and was without probable cause, and has terminated; butthat is a different cause of action, and depends upon differentallegations and proofs, and the action for maliciousprosecution must not be confounded with an action for falseimprisonment." (Italics added.)
Despite this announcement of the great jurist, Chief Justice McIver, who wrote the opinion, the trial Judge in the present case pitched the hearing as one on action for malicious prosecution; he admitted testimony pertinent to such issue, and charged the jury law applicable to such issue; and did not charge the law nor submit to the jury the issue of false imprisonment. Yet there had been no prosecution of plaintiff by defendant; he was arrested after judgment in a civil action under a process known as arrest and bail authorized by statute.
There can be no longer a doubt that this was an action for false imprisonment alone.
In the case of Barfield v. J.L. Coker Co., 73 S.C. 181,53 S.E., 170, 173, the Court said: "Where one brings an action for false imprisonment, all that is necessary for him to allege and prove is that he has been unlawfully *Page 27 restrained of his liberty, and it is wholly immaterial to inquire whether the charge against him, and for which he has been arrested, is well or ill founded in fact. McHugh v.Pundt, 1 Bailey, 441; McConnell v. Kennedy, 29 S.C. [180], 187, 7 S.E., 76. There is a material distinction between an action for false imprisonment and an action for malicious prosecution. The former proceeds upon the theory that the plaintiff has been arrested without authority of law and unlawfully deprived of his liberty, while the latter proceeds upon the theory that the plaintiff has been lawfully arrested upon a warrant charging a criminal offense, and that such prosecution is malicious and without probable cause."
That this was an action for malicious prosecution is made plain by the complaint which declares in express language that it is an action for false imprisonment and which in its recital shows that the plaintiff was arrested in a civil action and held in custody by authority of an order of the County Court of Richland County, which is a Court of competent jurisdiction. The order of Judge Whaley of the County Court under which the plaintiff was arrested, states explicitly that: "The affidavit of default shows that the complaint was duly served upon the defendant on the 21st day of October, 1933, as more fully appears by reference to affidavit of service on the back of the complaint made by H. E. Watts, a constable."
It appears that the order of arrest and imprisonment was regular on its face.
But if it be conceded, which is not done, that the demurrer was properly overruled, then let us analyze the situation there presented.
The plaintiff alleges in his complaint that the Court never acquired jurisdiction of the plaintiff in this action as defendant in the action of Haverty Furniture Company v. F.A. Cannon, because the summons and complaint were never served on the said defendant; that the defect of service appears upon the face of the record; that the judgment against *Page 28 Cannon was a nullity and gave no authority for the order of arrest and imprisonment, and might be disregarded wherever encountered.
The proof of service appearing on the back of the summons was in these words: "H.E. Watts being duly sworn says that he served the summons and complaint in this action on the defendant by delivering to Mrs. P.W. Fallaw, corner Bull and Taylor Streets and leaving with her copy of the same at Columbia, S.C. County, on the 21 day of October 1933, and that depondent is not a party to this action.
"Sworn to, etc.
"H.E. WATTS."
It is the contention of the respondent that this proof of service does not show that the service complied with the provisions of subdivision 4 of Section 434, Vol. 1, Code of Civ. Proc., 1932, which regulates the manner of service of summons, and which is as follows: "In all other cases to the defendant personally, or to any person of discretion residing at the residence or employed at the place of business of said defendant."
The alleged defects are that the proof of service does not show that Mrs. Fallaw was a person of discretion nor that she resided at the place of residence of defendant, that therefore the Court never acquired jurisdiction of the defendant, and that the judgment against him in favor of Haverty Furniture Company was a nullity, and it was not incumbent on the respondent to set it aside before bringing the present action.
We think this contention cannot be sustained and that this action is a collateral attack on the judgment.
In the case of Hunter v. Ruff, 47 S.C. 525, 25 S.E., 65,74, 58 Am. St. Rep., 907, the Circuit Judge held that the judgment against Hunter, under which his land was sold, was void, for the reason that the Court never acquired jurisdiction of the person of Hunter, who was a nonresident who had property in this State. The service of summons *Page 29 was by publication and depositing a copy of the summons in the Post Office addressed to him at Leon, State of Nicaragua, Central America, whereas it appeared that Hunter was at the time of the service of the summons by deposit in the Post Office a resident of the City of Jenopete, Central America (in the Republic of Nicaragua). The Supreme Court reversing the judgment of the Circuit Court in an elaborate opinion by Chief Justice McIver, said this: "In Freem. Judgm. § 126, quoted with approval in Darby v.Shannon, 19 S.C. [526], at page 537, and again in Easonv. Witcofskey, 29 S.C. [239], at page 246, 7 S.E., 291, 295, it is said: "There is a difference between a want of jurisdiction, and a defect in obtaining jurisdiction. * * * In case of an attempted service the presumption exists that the Court considered and determined the question whether the acts done were sufficient or insufficient. If so, the conclusions reached by the Court, being derived from hearing and deliberating upon a matter which by law it was authorized to hear and decide, although erroneous, are notvoid.'". (Italics added.)
In our present case the respondent was arrested and imprisoned upon order issued by Judge Whaley in a Court of competent jurisdiction, in which order he said: "The affidavit of default shows that the complaint was duly served on defendant on the 21st day of October, 1933, as more fully appears by the affidavit of service on the back of the original complaint made by H.E. Watts, a constable."
Here was an order regular on its face finding that the service of process was regularly and duly served, which the respondent in this action deliberately ignores and declares to be void.
Continuing the quotation from the opinion in re: Hunterv. Ruff, we find this: "Now, in the case under considerationthe presumption here spoken of has become a fact, for it isrecited in Judge Kershaw's order for judgment that a copyof the summons was duly mailed to the defendant, at `hisplace of residence', and, even if such finding of fact should *Page 30 afterwards turn out to be erroneous, that will not renderthe judgment void." (Italics added.)
When, therefore, Judge Whaley declared in his order that "the complaint was duly served on the defendant," the presumption that it was so served became a fact, and the defendant, in that case, could not by his ipsa dixit declare the judgment void. Of course, we are not to be understood to hold that the defendant in the original action could not by proper proceeding in the case attack the judgment for want of jurisdiction; we only hold here that in the stated circumstances he could not ignore the judgment as void nor could he attack it collaterally.
In the case of School District v. Fowles, 87 S.C. 552,70 S.E., 315, 316, it appears that the litigation began in Magistrate's Court, in which judgment by default had been rendered against school district No. 9. On certiorari to the Circuit Court, the judgment of the Magistrate's Court was reversed on the ground that it did not appear on the face of the proceedings that the magistrate had acquired jurisdiction of the defendant, in as much as the return does not show that Eargle, upon whom a copy of the summons and complaint was served, was a trustee of said school district. On appeal to the Supreme Court, the judgment of the Circuit Court reversing the judgment of the Magistrate's Court was reversed. The Supreme Court said: "A return of process, defective on its face, in that it does not show the relation of the person served to the defendant corporation, is cured by a recital in the judgment that the defendant had been duly and legally served" — citing Ford v. Delta PineLand Co. (C.C.), 43 F., 181.
The case of Dill-Ball Co. v. Bailey, 103 S.C. 233,87 S.E., 1010, recites a peculiar state of facts attending a service of process. The summons and complaint were lodged with the sheriff of Charleston County for service on the defendant, who lived on Edisto Island. The papers were sent by the sheriff to R.T. King to be served on defendant. He deposited them in defendant's mailbox by defendant's *Page 31 servant; and by him delivered to defendant. King testified that defendant sent for him and said: "I got those papers you sent me," or "I want to talk to you about those papers." Defendant denied in his testimony that he had sent for King or had such conversation with him. Upon the report of King, the sheriff made his certificate in usual form of personal service. Defendant by affidavit denied that he had been served with the summons and complaint.
The Circuit Judge held that the service was sufficient, and the Supreme Court sustained his finding.
The case of Gladden v. Chapman, 106 S.C. 486,91 S.E., 796, is applicable here. It was an action to recover possession of a tract of land sold for partition under a judgment of the Circuit Court. This Court, by Mr. Justice Hydrick, said on appeal:
"The record in that action, which defendants pleaded as an estoppel, showed that two of the plaintiffs were not parties thereto and that four of them were. The Court directed a verdict for the two who were not parties and against the four who were. The latter appealed. * * * This being a collateral attack upon it, that judgment and the sale made under it must be sustained, unless it affirmatively appears upon the face of the record that the Court had no jurisdiction of the subject of the action, or of the parties. * * *
"It must be presumed from the judgment rendered that the Court considered and adjudicated the regularity and sufficiency of each and every step in the proceedings leading up to it, including the sufficiency of the complaint, the issuance andservice of process upon the defendants, and the rights and interests of the parties to the action under the allegations and evidence; and although the conclusions with respect to thosematters, or any of them, might have been erroneous, so thatthey would have been reversed on appeal, they do not makethe judgment void collaterally" — citing Hunter v. Ruff, supra; Van Fleet on Collateral Attack, § 1; 23 Cyc., 1078. (Italics added.) *Page 32
Here is another interesting and applicable case: MetropolitanLife Ins. Co. v. Still et al., 140 S.C. 18,138 S.E., 401. This was an appeal from an order of the Circuit Court refusing a summons and complaint. The pertinent facts are thus stated in the opinion:
The summons and complaint were lodged in the Sheriff's office for service. He deputized Miss Riley to make the service. She went to the home of the defendant, the residence of her husband's mother, Mrs. Marion Still, in the Town of Blackville. The defendant was temporarily absent in Florida. Miss Riley told Mrs. Marion Still that she had a paper to serve on the defendant, Mrs. Hope L. Still. Mrs. Marion Still replied that she would not be responsible for any paper left for the defendant. Miss Riley asked to be allowed to place the paper upon the hall table, which was refused. Miss Riley then stated that she would place the paper in the mailbox on the porch, which she did. It also appears that the defendant returned from Florida between May 31 and June 17 and was informed that the paper had been left in the mailbox. Her husband on June 1 looked in the mailbox and found the summons and complaint, and defendant was informed of this fact. The order appealed from was affirmed.
See, also, McInnis v. Caulk et al., 176 S.C. 399,180 S.E., 340. It there appeared that the judgment contained no proof of service. A proceeding was brought to set aside the judgment on the ground that the defendants had not been served with summons and complaint. Despite the fact that no proof of service appeared in the judgment roll and the defendants swore they had never been served, this Court held that the circumstantial evidence was enough to show that service had been made, and the motion to set aside the judgment was denied.
It would appear that the respondent was not very confident of his position that the proof of service of the summons and complaint showed fatal defects. On the trial of the case he set to work by evidence aliunde the record to prove that he *Page 33 never was served with the summons. In support of his testimony he introduces Mrs. Fallaw, who was asked:
"Will you kindly tell us, if you remember, if any paper was served on Mr. Cannon or for Mr. Cannon during October 1933? A. I do not.
"Did you get any paper that was supposed to go to him, that you remember of? A. No, sir.
"Did you transmit any paper at all to him during that period? A. I did not."
Mendle Fallaw, aged 18, son of Mrs. Fallaw, the preceding witness, testified that he did not know anything of any paper being left to serve on Cannon. None was left with him.
That is the evidence which plaintiff offers to prove that no summons and complaint were served on him, except that he denied that he made the statements to which Mr. Murphy testified.
As against the plaintiff's testimony anent the service, the defendant introduced the affidavit of Mrs. Fallaw, made before the trial of the instant case, in which she swore as follows:
"Personally appeared before me, Mrs. Perry T. Fallaw, who being duly sworn, says that she has been residing in the City of Columbia, S.C. for the past eight years; that she now resides, and at the times hereinafter mentioned did reside at the premises situated at the corner of Bull and Taylor Streets, known as 1529 Bull Street, Columbia, S.C. ; that on or about the 21st day of October, 1933, Mr. H. E. Watts delivered to her and left with her a copy of the Summons and Complaint in the foregoing entitled action, and at the same time advised her that the same was to be given to the defendant F.A. Cannon, who at said time lived and resided at the residence of deponent; that shortly thereafter deponent delivered the said Summons and Complaint, as served upon her by H.E. Watts, to said F.A. Cannon, personally."
"MRS. PERRY T. FALLAW. *Page 34
"Sworn to before me this 5th day of March, 1934.
"H.E. WATTS, "Notary Public for S.C."
H.E. Watts for defendant testified that he was a constable, had been for 14 years; knew Mrs. Fallaw well; when the summons and complaint in the case of Haverty FurnitureCompany v. F.A. Cannon was given him for service, he went to Mrs. Fallaw's, where Cannon was boarding; in consequence of what Mrs. Fallaw told him, he left the summons and complaint with her. He testified further that Cannon told him he got the papers but he did not live in Richland County. He testified further that he was going by what Mrs. Fallaw told him; would not have left the paper there if she had not told him Cannon lived there.
J.B. Murphy, attorney for plaintiff in the case of HavertyFurniture Co. v. Cannon, testified that he gave the papers in that case to Mr. H.E. Watts to be served on Mr. Cannon. Watts made the service and brought the papers back to him. Before the time for answering had expired Mr. Cannon came to him at his office and asked him not to take judgment against him, that he owned a filling station in Orangeburg which he was going to sell and would pay up; waited approximately ten days after time for answering had expired before taking judgment. After he was arrested, Mr. Cannon came by Mr. Murphy's office with Mr. Starling. He told Cannon in the presence of Mr. Starling that he had made these statements to the witness. "I made the statement, which he did not contradict that he had come to see me after the papers were served and I had given him a week or ten days in which to raise the money."
Mr. J.T. Starling, deputy sheriff, testified that he took Cannon, at his request, after his arrest, to Mr. Murphy's office. The witness was asked:
"Did you hear Mr. Murphy's testimony about what took place between he (him) and Mr. Cannon in your presence? A. Yes, sir. *Page 35
"Q. Is that correct? A. Yes, sir."
The facts in the case of Dill-Ball Co. v. Bailey, supra, have been hereinabove detailed. The Circuit Judge said in his order: "It seems to me that when the defendant sent for the representative of the Sheriff and stated that he had received the papers, and had them then in his possession and then and there recognized the service, it was a substantial compliance with the requirements as to personal service, notwithstanding the papers had been conveyed to the defendant in a circuitous way."
In the case of Metropolitan Life Ins. Co. v. Still, supra, the facts of which are substantially hereinabove set forth, the motion to set aside the service was refused by the Circuit Judge; defendant gave notice of intention to appeal and served an answer, with a notice that the answer became effective only if the Supreme Court sustained the order of the Circuit Court. This Court said: "Passing by the question whether this reservation was sufficient to relieve the defendant from a waiver of imperfect service, we think that it was sufficient to show that the defendant was, with the other circumstances detailed, fully informed of the pendency of the action. This answers all the purposes of a summons, and comes within the rule laid down in Dill-Ballv. Bailey, 103 S.C. 233, 87 S.E., 1010."
There can be no doubt that F.A. Cannon had notice of the pendency of the action of Haverty Furniture Company against him. He admitted so much to H.E. Watts, the constable who served the summons, and to Mr. J.B. Murphy, plaintiff's attorney in that case, in the presence of J. T. Starling, deputy sheriff.
Unquestionably the plaintiff in this action has been permitted to make a collateral attack upon the process under which he was arrested and imprisoned, which process of the Court was regular on its face in every particular.
Collateral impeachment, which is declared to be synonymous with collateral attack, is thus defined by Black's Law Dictionary (3d Ed.), p. 348: "A collateral impeachment of *Page 36 a judgment, or decree, is an attempt made to destroy or evade its effects as an estoppel, by reopening the merits of the cause by showing reasons why the judgment should not have been rendered, or should not have a conclusive effect, in a different proceeding, i. e., in any action other than that in which the judgment was rendered; for, if this be done upon appeal, error, or certiorari, the impeachment is direct" — citing a long list of cases from other jurisdictions and that of Tolbert v. Roark, 126 S.C. 207, 119 S.E., 571,574.
Whatever name the plaintiff and the trial Court have given to the nature of the action, it constitutes a collateral attack upon a judgment valid upon its face.
The case of Tolbert v. Roark, above cited, is decisive of this question: "There can be no doubt * * * that, generally speaking, all attacks upon a judgment which involve an examination of evidence de hors the record of the cause wherein the judgment was rendered should be regarded as collateral for the purpose of applying the rule that a judgment may not be collaterally impeached for a defect or infirmity not apparent on the face of the record, and `that the proper remedy in attacking a judgment for any defect not apparent upon the face of the record is by a motion in the cause, and before the Court in which the judgment was recovered.'"
This view is even more forcefully stated in the case ofCoogler v. Crosby, 89 S.C. 508, 72 S.E., 149, in this language:"The entire absence of proof of service is not to betaken as conclusive evidence that no such service was made;on the contrary, the Court before which the judgment rollis offered in evidence must presume that the Court, on thehearing of the case in which the judgment was renderedhad before it proper proof of the service of the summons, orit would not have rendered the judgment. * * * Insuch case the judgment is not void on its face, and theonly remedy of a party claiming not to have been served is *Page 37 by a direct proceeding to have the judgment set aside." (Italics added.)
In Gladden v. Chapman, supra, Mr. Justice Hydrick said this: "Sound public policy requires that the solemn judgments of the Courts and rights acquired thereunder be sustained against collateral assault, if in reason and justice it can be done. If such judgments and rights are lightly overthrown, the Courts are brought into disrepute and merited contempt."
If the action in the present case be held to be one for false imprisonment, as it must be, it was reversible error to overrule the demurrer, because it appears from the allegations of the complaint that the plaintiff was arrested and imprisoned under process regular on its face, issued by a Court of competent jurisdiction.
It was error not to grant defendant's motion for directed verdict, for it appeared by competent and direct evidence that the order for the arrest and imprisonment of the plaintiff was regular on its face and was issued by a Court of competent jurisdiction on a judgment, regular on its face and unimpeached by any proper proceeding.
If it should be held that the present action was one for false arrest or malicious prosecution, it is patent that it is a collateral attack upon a judgment. It was error not to grant the motion for directed verdict made by defendant.
The exceptions raising these issues should be sustained, the judgment of the Circuit Court reversed, and the complaint dismissed.
MR. JUSTICE BAKER concurs. *Page 38