
    No. 403
    CONWAY v. KELKE et
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5432.
    Decided Jan. 26, 1925.
    Cushing P. J. and Hamilton & Buchwalter JJ., 1st Dist., sitting.
    507. FALSE IMPRISONMENT—An action for, cannot exist when order is not based on a void warrant.
    Attorneys—Howell, Roberts & Duncan, of Cleveland, for Conway; M. W. & J. C. Spear, Cleveland, and Smiley & Edmunds and C. R. Summers, Oberlin, for Kelke et.
   BY THE COURT.

The Cuyahoga common pleas sustained a demurrer to the petition of Edward Conway, for false imprisonment, on the ground that it did. not state a cause of action. Conway not desiring to plead further prosecuted error to the court of appeals seeking a reversal.

The action was brought against Henry Kelke an officer on the Cleveland police force, C. I?. Smiley, a justice of the peace of Lorain county, Fred Edmunds, the constable of that court, and Theodore Van Ausdale, the complaining witness, himself a resident of Elyria. Conway’s petition alleged that Van Ausdale procured Smiley to issue a warrant for him on an accusation of assault and battery, committed on Van Ausdale June, 1923. Conway, further alleged that the affidavit was made and the warrant issued with a full knowledge that he was a resident of Cuyahoga county, and that Van Ausdale conspired to have Edmunds serve the warrant in Cuyahoga county; that Edmunds did proceed to Cuyahoga county and with the assistance of Kelke procured his arrest and detention, conveyed him to Lorain county before Smiley, the justice, which justice accepted the plea of guilty and Conway was fined. The court of appeals held:

1. The law is that an action for false imprisonment must be based on a void warrant. Diehl v. Friester, 37 OS. 475. Spice v. Stemruck 14 OS. 213.

2. The petition alleged that Smiley was duly elected, qualified and acting justice of the peace in Lorain county; and an affidavit was filed by Van Ausdale charging the offense of assault and battery. Under these allegations the warrant issued was in all respects valid according to law, and gave the court jurisdiction of the subject matter. This being true there can be no action for false imprisonment for such action must be based upon a void order.

The petition fails to state a cause of action and the judgment sustaining the demurrer will be affirmed.  