Grant v. Williams

delivered tbe opinion of tbe court.

. The facts out of which this controversy arises are set forth fully in Grant v. Williams, ante, p. 246, 169 Pac. 286. This appeal is from the judgment in favor of defendant Lutz and his sureties, Bogy and Price.

1. It is not alleged in the complaint that Lutz acted maliciously [1] in instituting the proceedings in the justice court, and for this reason a cause of action for malicious prosecution is not stated. (Smith v. Davis, 3 Mont. 109; Grorud v. Lossl, 48 Mont. 274, 136 Pac. 1069; Stephens v. Conley, 48 Mont. 352, Ann. Cas. 1915D, 958, 138 Pac. 189.)

2. The complaint charges that defendant Lutz acted in his [2] official capacity as town marshal of Chinook when he arrested the plaintiff, but it fails to allege that he acted without warrant or other sufficient legal process. From the facts stated, the presumption arises that Lutz performed an official duty in a regular manner (Rev. Codes, sec. 7962, subd. 15), and to make out a cause of action for false imprisonment the burden was imposed upon the plaintiff to state facts sufficient to overcome this presumption and to disclose wherein the violation of his liberty was unlawful. This he failed to do. The most extravagant use of the terms “wrongfully” and “unlawfully” will not serve to relieve the pleader of the necessity of stating facts upon which issue may be joined. (Going v. Dinwiddle, 86 Cal. 633, 25 Pac. 129.)

The complaint does not state a cause of action, and the court ruled correctly in sustaining the demurrer.

The judgment is affirmed.

I'Affirmed.