Harker v. Clark

57 Cal. 245

Opinion

Myrick, J. :

The complaint avers, that defendant’s intestate in his lifetime, without probable cause, commenced a suit against plaintiff, and procured an order for the issuance of a writ for the arrest, detention, and imprisonment of the plaintiff Mary A. Barker, by virtue of which writ she was arrested and imprisoned until such arrest and imprisonment was adjudged to be without authority of law; and that in procuring her release she was compelled to and did employ an attorney, and paid him for his services therein $500. The complaint also avers the death of the intestate, the appointment of defendant as administratrix, and the presentation and disallowance of a claim for the $500. To the complaint the defendant demurred on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and thereupon judgment went for defendant.

This action is clearly within the maxim, “ a personal right of action dies with the person,” xnless the right of action has been kept alive by some statute. (Broom’s Legal Maxims, p. 869, etc.; 6 Wait’s Prac. 329, and cases there cited.) The statute under which the plaintiff claims a right to recover is § 1584, Code of Civil Procedure, by which a person “ may maintain an action against the executor or administrator of any testator or intestate who, in his lifetime, has wasted, destroyed, taken or carried away, or converted to his own use the goods or chattels of any such person.” The intestate Clark did not, by the arrest or imprisonment, or by thereby compelling the plaintiff Mary A. Barker to' pay $500 to her attorney, waste, destroy, take or carry away, or convert to his own use the goods or chattels of said Mary A. Barker.

Judgment affirmed.

Morrison, C. J., and Thornton, J., concurred.