Page:North Dakota Reports (vol. 48).pdf/517

 insufficiency of the evidence to sustain the verdict and judgment. The material facts in the case are as follows:

Olson, a young man, lived at Lisbon, where he operated a garage. Jensen lived in the same town, and was selling agent of Chalmer and Maxwell automobiles for the Horton Motor Company of Fargo. There was some difficulty between Jensen and the Horton Motor Company not necessary to detail here. On or about the 5th day of. August, 1920, Olson went to Halstad, Minn., on an errand for Jensen; while there, on the evening of the date last mentioned, and while he was at the residence of one Mrs. Moe, the mother of Mrs. Jensen, he was arrested by the village policeman, one Sather, who was directed to make the arrest by Kirby and Martincka, two of the defendants who were at this time at Halstad. Sather turned Olson over to Kirby, who took him to Fargo, but did not there turn him over to the sheriff, but instead he took him to the office of defendant Horton, who theretofore and prior to the arrest had sworn to a complaint before H. F. Miller, the justice of the peace, charging the plaintiff and Jensen with embezzlement of an automobile claimed to be the property of the Chalmers Motor Car Company, and upon such complaint the warrant was issued and delivered to the sheriff of Cass county for service. The car in which plaintiff drove to Halstad was his own car.

The proof seems to be quite clear that there was no cause to arrest the plaintiff. He was not in the employ of the Horton Motor Company. He was restrained of his liberty and right of locomotion, not by any public officers, but, as hereinafter stated, by Horton and Kirby. It appears that Martincka did not come to Fargo, and that he had nothing to do with what transpired there in Horton’s office. It also appears that this is the particular time, if any, when the plaintiff was restrained of his liberty and right of locomotion. Neither Horton nor Kirby were public officers, but in some way were connected with the Horton Motor Company. Olson was restrained at Horton’s office from about 11:00 o'clock p. m. until about 3:00 o’clock a. m. the following morning, when he was permitted to go where he wished. While there, he was questioned by Horton and Kirby, presumably on matters relative to his arrest.

Though the defendants have assigned many errors, they have abandoned everything except the following three points: (1) The total insufficiency of the evidence to justify a verdict for false arrest or false