Shank v. Village of St. Louisville

5 Ohio N.P. (n.s.) 510

• Court: Licking County Court of Common Pleas
• Decided: January 15, 1907
• Status: Published

Opinion

Seward, J.

(orally).

This is a petition, to recover damages from the village of St. Louisville and the other defendants in the case for unlawfully depriving him of his liberty. The petition states:

“Now comes the plaintiff, Samuel Shank, and for his cause of action herein, says: That he is a resident of St. Louisville, Ohio, a village duly incorporated under the laws of the state of Ohio; that E. .Follett Dush was at the times hereinafter set forth the mayor of said village, and that Ilarvey Billman was the marshal of said village at the times hereinafter set out. That the village of St. Louisville, E. Follett Dush and Harvey Billman, said defendants, on the 5th day of August, 1906, arrested this plaintiff and imprisoned him and unlawfully and-by force deprived him of his liberty for thirty hours, on no charge and without any legal warrant or any legal process of any kind or description.”

It is quite certain that the village can not be held in this case, unless these parties were acting, when they arrested him, as officers of the village, and the petition does not so allege. It alleges that they were officers, but not that, in their official capacity as officers, they caused this arrest to be made.

This is a motion to make the petition more definite and certain by setting out in what capacity the village caused his incarceration in the jail, and in what capacity they were acting — whether as officers or otherwise.

Bussell & Horner, for plaintiff S. L. James, for defendant.

The court thinks that if a demurrer had been interposed to the petition it would have been sustained; but the motion may be sustained, and leave given to amend.