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Rouse v. Anaconda-deerlodge County9/11/1991
pe."
The District Court ruled that this section does not apply "because none of the officials listed in the statute are involved in the instant case."
We agree. There is authority that the statute does not apply to these types of actions, see Dixon v. Seymour (N.Y. 1978), 62 A.D.2d 444, 405 N.Y.S.2d 320, 321-22; Ingo v. Koch (2d Cir. 1942), 127 F.2d 667, 671; 80 C.J.S., Sheriffs and Constables, § 151(b) (1953). However, even assuming they do apply, neither Officer Martelli nor Officer Cutler is a sheriff or coroner within the plain meaning of the statute. Rather, they are law enforcement officers of a consolidated city-county government entity. Furthermore, they are not "constables" within the true meaning of that word. Black's Law Dictionary (6th Edition 1990) defines constable as
" n officer of a municipal corporation (usually elected) whose duties are similar to those of the sheriff, though his powers are less and his jurisdiction smaller. He is to preserve the public peace, execute the process of magistrates' courts, and of some other tribunals, serve writs, attend the sessions of the criminal courts, have the custody of juries, and discharge other functions sometimes assigned to him by the local law or by statute. Powers and duties of constables have generally been replaced by sheriffs."
We also note that in at least one other jurisdiction where a similar statute of limitation has been held to apply to the tortious acts of law enforcement officials, the statute contains the words `peace officer' rather than `sheriff' and `constable.' See Jenkins v. Daniels (Alaska 1988), 751 P.2d 19, 21. On the other hand, the wording of § 27-2-209(1), MCA, is virtually unchanged from the original statute contained in the Field Code and first enacted in New York in 1829. See Dixon, 405 N.Y.S.2d at 321. If the legislature intended this limitation period to apply to all "peace officers" for all their tortious acts, it could have so amended it. Thus, the two year statute of limitation contained in § 27-2-204(3), MCA, applies to Rouse's assault claim against Martelli, and it is thus barred.
III. DEFENDANTS' ISSUE
In their response brief, the defendants attempt to raise the following issue, in the event that we reverse on the statute of limitation:
Did the District Court err in determining that the defendants are not protected from suit based on the immunity provided in § 2-9-111, MCA?
The record indicates that the defendants have failed to properly preserve this issue for appeal by filing timely cross-appeal on this issue.
"Although Rule 14 [M.R.App.Civ.P.] provides for review of matters by cross-assignment of error, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of rulings on matters separate and distinct from those sought to be reviewed by the appellant."
Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268. Thus, we are precluded from reviewing this issue on appeal.
In summary, Rouse's assault claim against Officer Martelli is barred by § 27-2-204(3), MCA. Rouse's claims against the individual officers for malicious prosecution and his claim against the County are not barred, and we reverse the District Court's order to that extent. AFFIRMED in part and REVERSED and REMANDED for further proceedings consistent with this opinion.
JUSTICES HARRISON, TRIEWEILER, and HUNT concur.
JUSTICE WEBER, specially concurring:
I agree with the holding of the majority opinion that the cause of action was not barred by the statute of limitations contained in § 27-
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