This case is here on a second appeal. Both appeals are from the order of the District Court dismissing plaintiff's complaint for failure to file a bond as security for costs and attorney's fees, on motion of defendants Lee, Rogers and Randall. The allegations of the amended complaint are the same as those involved in the former appeal. The dismissal *Page 91 is based upon Sec. 104-44-22, U.C.A. 1943. The allegations of the amended complaint and the section of the statute are quoted at length in the former opinion, 101 Utah 76, 118 P.2d 132.
Appellant presents four questions: (1) Failure of the trial court to separately state its findings of fact and conclusions of law. (2) The judgment is not supported by the evidence.
(3) "Chapter 148, Laws of Utah, 1937 (now Sec. 104-44-22, U.C.A. 1943) does not protect officers from acts committed outside the scope of their official duty." (4) "When a peace officer goes outside the scope of his duty and commits torts he is not entitled to protection on account of his office, but is liable the same as a private individual."
As to point numbered (1), no attempt was made by the court to make findings of fact or conclusions of law. The matter came before the trial court upon a motion to dismiss. The court entered what is entitled a "Judgment of Dismissal."
The charge that the court failed to separately state findings of fact and conclusions of law may not be denied. The statute provides:
"In giving the decision the facts found and the conclusions of law must be separately stated * * *." Sec. 104-26-3, U.C.A. 1943.
This section has been construed by this court many times, and applied both as to form and substance. The requirement as to separate statement of findings of fact and conclusions of law is directory although the statute says they must be separately stated. Consolidated Wagon Mach. Co. v. Kay, 81 Utah 595,21 P.2d 836.
It is not easy at times to draw a sharp line between a finding of fact and a conclusion, especially of a statement of an ultimate fact. The function of a finding of fact is to furnish a basis from which a conclusion may be drawn. The trial court should therefore make findings of fact on all material *Page 92 issues. Piper v. Hatch, 86 Utah 292, 43 P.2d 700, and cases cited.
The difficulty arises in the instant case to find any material findings of fact in the "Judgment of Dismissal." The trial court found "that Fred Lee, Lee Rogers and A.C. Randall were at all times mentioned in the complaint of plaintiff, peace officers." No issue is raised by the complaint as to whether defendants were or were not peace officers. At the hearing, counsel for plaintiff promptly conceded and stipulated that Lee, Rogers and Randall were police officers of Salt Lake City. Following the above quoted statement, the court then said they were "charged with the duty of enforcement of the criminal laws of Utah and that at the times and places mentioned" they "were acting as such peace officers and the action * * * arose out of or in the course of the performance of the duty * * * as peace officers to enforce the criminal laws in the State of Utah." No facts are found upon which to base these conclusions. A peace officer is, as a matter of law and his oath of office, bound to perform the duties imposed upon him. The assignment does not raise the question that no finding was made or that it was insufficient. The judgment of dismissal is in the language of the affidavits of defendants, and substantially the affidavits and testimony are the same.
The motion is made "to dismiss the complaint of plaintiff on the ground and for the reason that plaintiff has failed to file a written undertaking in compliance with Chapter 148, Laws of Utah 1937" (Sec. 104-44-22, U.C.A. 1943). It was further stated the motion will be based upon the records and files, the affidavits "and evidence."
There are two admissions. One is that the undertaking was not filed, and the other is that the defendants were police officers of Salt Lake City. These two facts are not sufficient to support a judgment of dismissal. They are immaterial as there are no allegations in the complaint as to either.
That "the judgment is not supported by sufficient evidence" follows as of course. "A" may bring a suit against *Page 93 "B" for assault, slander, libel, malicious prosecution, false imprisonment, or other tort without filing a bond. May it be said that "B," as a matter of course, can have such action dismissed on motion by merely showing that he was a peace officer at the times alleged and no bond has been filed? The answer is self-evident. But when "B" also says that the acts done or things said were in the course of his duty, he then states a conclusion. Had "B" stated the relevant facts that bring him within his conclusion, a different situation would be presented. In the instant case no facts were stated. What law were the officers proceeding to enforce? Had an offense been committed in or out of the presence of an officer? By what law or circumstances authorizing them to do anything were they doing what they are charged with in the complaint? Had a warrant of arrest been issued? Had a complaint been filed? What facts show a felony had been committed, or that the parties charged were authorized to do what they were charged with doing, or that they had any grounds for acting?
An arrest may be made by a peace officer or by a private person. It must be done in the manner authorized by law. Sec. 105-13-1, U.C.A. 1943. In the instant case what law were the peace officers enforcing or attempting to enforce? No showing was made that an offense had been committed in the presence of the officers, or that a felony had actually been committed, nor were any facts shown to justify the conclusion that they were acting as peace officers or in the enforcement of any law. The authority and the circumstances under which peace officers may arrest are in general set out in Sec. 105-13-3, U.C.A. 1943, et seq. Fresh pursuit and retaking after escape or rescue have no place in this discussion.
The word "arrest" does not appear in the complaint. The allegation that "the defendants compelled" may be a characterization of a similar process. The allegations of the first cause of action are of the nature of those used in a false arrest or false imprisonment; the second cause, of malicious *Page 94 prosecution; the third, for assault and personal injuries; and the fourth, upon an inquisition as to sanity.
The third point raised on this appeal and hereinbefore quoted is that Chap. 148, Laws of Utah 1937, (Sec. 104-44-22, U.C.A. 1943) "does not protect officers from acts committed outside the scope of their official duty." This states a truism. No person is protected against his torts by the chapter. The issue is, was there a tort committed? The complaint alleges there were torts committed by certain named individuals. That is as far as the complaint goes.
The fourth assignment states merely a proposition about which there should be no difference of opinion. It is:
"When a peace officer goes outside the scope of his duty and commits torts he is not entitled to protection on account of his office, but is liable the same as a private individual."
The constitutionality of the statute requiring a bond to be filed as a condition precedent is argued in the briefs by both appellant and respondents. Appellant merely says, "Chapter 148, Laws of Utah 1937, is void." The validity of the statute was not presented to the trial court. It may be the trial court was of the opinion the statute applied if a suit was brought against any peace officer, if a showing was made that the defendant was a peace officer, and that such showing required a dismissal. If such was the trial court's view, we think it was giving a meaning to the statute not found in it.
We shall refer to the statute as it now appears in the Utah Code Annotated 1943, as Sec. 104-44-22. The section reads:
"In any action brought against any sheriff, constable, peace officer, state road officer, or any other person charged with the duty of enforcement of the criminal laws of this state, or service of civil process, when any such action arises out of, or in the course of, the performance of his duty, or in any action upon the bond of any such officer, the prevailing party therein shall, in addition to an award of costs as otherwise provided by law, recover from the losing party therein such sum as counsel fees as shall be allowed by the court. The official bond of any such officer shall be liable for any such costs and attorney fees. * * *" *Page 95
Had the section ended thus with the words "attorney fees," this case would not have arisen, nor would the case of Kiesel etal. v. District Court, 96 Utah 156, 84 P.2d 782. It is the last sentence of the section, not quoted above, to wit: "Before any such action is filed" etc., that appears to have been construed as though the words, "when any such action arises out of, or in the course of, the performance of his duty," were not in the statute. It takes more than the fact of official position to make the last sentence of the section applicable. It must either be alleged in the complaint or shown by proof that the acts were official or so related thereto as to establish official immunity.
The statute does not require the filing of a bond "in any action brought" against any person who happens to be a peace officer. The statute cannot be construed as a cloak to protect any peace officer by a bond as a condition precedent merely because of his official position and to prevent his being sued without the bond for personal wrongs having no relation to his official duties. Officers should be protected to the limit within the performance of their authorized acts and imposed duties.
The language of the statute requires a bond only "when any such action arises out of, or in the course of, the performance of his duty." There is not a word in the complaint about any of the defendants being officers of any of the classes mentioned in the statute, nor is there any mention of any "bond" of such officer, nor that any of the wrongs against plaintiff were in any way related to any officer while in "the performance of his duty."
The case of Kiesel et al. v. District Court, supra, on certiorari to this court raised the question of jurisdiction of the trial court to proceed with the trial of an action against public officers after denying a motion to dismiss the complaint for failure to file a bond under Sec. 104-44-22, supra. In the Kiesel case the suit upon which the certiorari proceeding was based was one against the city marshal of Salina, Utah, and his deputy and the surety upon their bonds. We *Page 96 held that the failure to file a bond before or at the time of filing the complaint did not deprive the court of jurisdiction to proceed. That case differs from the instant case in that the instant case does not purport to be a suit against public peace officers or upon their bonds.
We are of the opinion the statute has not shut the door against the right to bring an action against any person, official or otherwise, for a wrong committed and not alleged to have any relation to or connection with official duties. It must therefore follow that the judgment of dismissal was erroneous. The cause should be reinstated. Such is the order. Costs to appellant.
LARSON, J., concurs.