(concurring specially). On a pleasant summer day *128in June, 1919, in the city of Enderlin, the plaintiff and her husband were taken in a car and put in the Enderlin jail by the chief of police. Then he made complaint on which Mr. Underwood, the police magistrate, issued a warrant against them, and discharged them because the complaint did not state a cause of action. The result was two actions against the defendants for false imprisonment. Her verdict was $4,000; his, $1,200.
Some two years before the arrest the Masons had traded some property for the house and lot on which Harper and his family had resided for over three years and on which he had a tent worth about $15. The Masons served on Harper notice to quit the premises and had a suit to obtain possession. That was on June 21, 1919. Harper claimed the right to hold possession until July 13th and that in payment of rent until then he had deposited in the Bank of Enderlin $22.50. The suit went against Harper. Then the Masons took the $22.50 which Harper had deposited to their credit and refused to refund it. Hence Harper refused to deliver possession of the house which he left and retained the keys. In removing he neglected to take the tent. The Masons stealthily took possession by opening a window and-then they claimed the tent as a part of the realty because it was fastened to the earth by stakes to prevent it blowing away. Harper hired a dray to go and take the tent, and at his request, Moran, the chief of police, went with the dray. The Masons persisted in holding the tent. He said to her: “Old girl, hold the tent.” The chief of police took them into his car and put them in jail and made a complaint on which the police magistrate issüed a warrant for the arrest of the Masons. The complaint was under a supposed city ordinance. The charge was that on June 27, 1919, in the city of Enderlin, the defendants did commit the crime of being disorderly and of disorderly-conduct within the city of Enderlin, and that the defendants did wrongfully and with malice aforethought threaten and interfere with the person of complainant, the chief of police, contrary to the provisions of the ordinance of the city of Enderlin. Pending the hearing of a demurrer to the complaint, she was released without any bail. He was released on a deposit of a check for $75. After argument it was adjudged that the demurrer be sustained and the defendants discharged.
Mr. Underwood, the magistrate, is the only party in any way responsible. The others have no property; they are execution proof. The verdict is almost entirely for punitory damages. There can be no just claim that *129either the plaintiff or her husband were in any way materially injured. The $15 tent was the cause of all the trouble. As Harper had been in possession of the house for over three years, and long before the purchase of the same by the Masons, he was doubtless the owner of the tent and he had a perfect right to remove it. He offered evidence to show his ownership and to show that he had retained the keys and had not given up possession of the tenement, hie offered evidence to show that pending his suit for possession he had deposited in the Bank of Enderlin $22.50 as rent of the house to July 13, 1919, and that when the Masons prevailed in the suit they took from the bank the $22.50 and refused to refund the same or any part of it. The court refused to permit the evidence. That was error. In taking surreptitious possession of the tenement and in refusing to give up the tent and claiming it as a part of the realty, and in taking the money deposited for rent to July 13, 1919, the Masons were clearly wrongdoers and aggressors and there is no use to say that Elarper had a perfect remedy by an action of replevin, as such an action would have cost the full value of the tent. The question being one of exemplary damages, it was clearly proper for Harper to show ihat he owned the tent and had a right to remove it. If the Masons by their conduct directly provoked and caused’ the wrong of which they complain, there is no reason why they should recover punitory damages. Indeed, their right to actual damages against either of the defendants is a question of grave doubt.
Now let us consider the liability of each defendant. Moran was chief of police, and in making the arrest without a warrant and then making the complaint and serving the warrant he did' just what policemen are doing every day. Whether right or wrong, he acted officially, and the presumption is that he acted in good faith.
Elarper is in no way liable. He was no party to the arrest. There is no evidence of a conspiracy, as charged in the complaint.
Mr. Underwood, the police magistrate, issued the warrant- against the defendants on a complaint which he himself held bad on demurrer. Elis action was purely judicial. That is shown by the complaint, the docket, and the testimony of the magistrate.
The case is quite similar to the recent case decided by this court. Landseidel v. Culeman, 181 N. W. 593. In that case the defendants appealed from a joint verdict and judgment against them for $4,000. Culeman claimed that he merely acted as a justice of the peace. By a *130special verdict the jury found that for the purpose of extorting money from the plaintiff the defendants jointly caused him to be arrested and confined in the city jail at Hebron, and that none of the defendants believed him to be guilty of any offense. However, this court held thus:
“A justice of the peace, acting judicially, and within his jurisdiction, is not * * * liable for damages resulting from the arrest and confinement of an individual in jail, though it might appear that he acted maliciously and without the belief that the person had committed a criminal offense.”
Also, that—
“Where two or more defendants are sued jointly for damages arising out of a malicious trespass, * * * and * * * it appears that one of the defendants is not liable, the award of punitory damages cannot stand as to the codefendants”
This is not a case for punitory damages.
Judgment reversed, and new trial granted.