26 Ind. 451 | Ind. | 1866
Suit by Crosby, the appellee, against Ammerman, the appellant, for a malicious prosecution. The court overruled a demurrer to the complaint, to which the defendant excepted. This ruling is assigned for error. The first objection urged to the complaint is that it does not contain a sufficient “title of the cause,” as required by the 49th section of the code.
The objection cannot be sustained. The complaint commenced as follows: “ In the Court of Common Pleas of Huntington county, October term, A. D. 1863. Charles Crosby complains of John Am,merman, and says,” &c. This was a substantial compliance with the statute. It is also objected to the complaint that there are no sufficient averments of the name, character or purpose of the writ which it was alleged was sued out against the plaintiff, whereby he was arrested. The complaint alleges that the defendant, “ not having any reasonable or probable cause of action whatever
The defendant filed an answer consisting of a general denial and two special paragraphs. The court, on the plaintiff’s motion, struck out the special paragraphs. This is also assigned as error. Ho bill of exceptions embracing
One of the causes assigned for .a new trial was, “ errors of law occurring at the trial, and excepted to at the time.” The errors complained of are particularly referred to in the motion.
The admission of improper testimony is one of the errors specified. A bill of exceptions containing the evidence shows that much of the evidence offered by the plaintiff was objected to by the defendant and the objection overruled, to which he excepted, but in no instance does the exception show that the ground of the objection was pointed out or stated to the court below. This should have been done to make it available in this court. This point has been too frequently ruled to require a reference to the cases..
Another question arises upon the refusal of the court to admit certain evidence offei*ed by the defendant. The record shows that the suit in which the plaintiff was arrested and imprisoned was instituted in the name of the defendant by Francis Ammerman, the son of the defendant, who claimed to be his agent, in the absence and without the knowledge of the deféndant; and on the trial, Francis, the son, was introduced and sworn as a witness for the defendant. In the course of the examination in chief the following questions were severally propounded to the witness: “"What did you learn-from 8. G. 8wazey, William Randolph and Mr. Odenthall, in reference to Crosby’s going to leave the State, before bringing the suit?” And again, “"Why did you commence the prosecution against Crosby ¶” To which questions the plaintiff objected, the court sustained the
The same witness was also asked by the defendant, what he learned on the day he commenced the prosecution against Crosby that induced him to commence it? To which the witness answered as follows: “I learned of Mr. Collins and Mr. Me Grew that he, Crosby, was going to Lagro to get on a train that day, and was going on west to Illinois.” The plaintiff' moved the court to strike the answer from the evidence and withdraw the same from the jury, which motion the court, over the defendant’s objection, sustained. In these rulings, we think the court erred.
It appears from the papers in the cause referred to, given in evidence by the plaintiff, that the defendant in this suit was the surety of the plaintiff on a bond given by him for the delivery of certain property taken in execution. It was further shown by the evidence that Crosby, in the absence of the defendant, had prepared and was about to remove from the county, but whether to some other place within or without the State seems not to have been certainly known to the public, and the son of the defendant, in the absence of the latter, after inquiring, and upon consultation with an attorney, filed an affidavit, as the agent of the defendant, alleging that the plaintiff was about to leave the State, without performing, or making any provision for performing, the conditions of said delivery bond, taking with him moneys, property, rights and effects subject to execution, with intent to defraud the defendant in this suit, and thereupon commenced the suit and caused the writ to be sued out against Crosby, whereby he was arrested and imprisoned.
This suit is for a malicious prosecution against the defendant, for causing such arrest and imprisonment. In order to sustain the action, it was necessary that the prosecution should have been instituted without probable cause, and also that it should have been done maliciously. The want of probable cause was not sufficient without malice,
If the agent of the defendant was informed by persons in whom he might and did confide, that the plaintiff was about to remove from the State with his property, and was thereby induced to sue out the writ upon which the plaintiff was arrested, proof of these facts would legitimately tend to show probable cause, as well as to rebut the presumption or proof of malice, and should have gone to the jury.
The question of the sufficiency of the evidence to sustain the finding of the jury is also presented and discussed, but we have not examined it, for the reason that the judgment must be reversed for the cause above stated, and the evidence may present the case in a different light on another trial.
The judgment is reversed, with costs, and the cause remanded for a new trial.