66 So. 763 | La. | 1914
Plaintiff appeals from a judgment maintaining an exception of no cause of action to his petition, in a suit for damages arising from an alleged malicious prosecution.
Plaintiff alleges that defendant caused him to be indicted by the grand jury of the parish of Calcasieu for cutting and removing timber from certain lands, which lands defendant claimed to be the owner of; and, again, that defendant caused an information to be filed against him by the district attorney of the same parish.
The petition does not state clearly that the information filed by the district attorney, under 'which he was arrested and arraigned, was for the same cause as that for which he had been indicted by the grand jury. The allegation with reference to this last arrest is:
*157 “That George Locke, in order to carry out his wicked and malicious designs, and to harass and annoy petitioner, the said George Locke did on the 30th of May, 1912, again caused your petitioner to be indicted, or an information filed, and your petitioner was arrested, brought before the Fifteenth judicial district court, arraigned in the presence qf_ a large number of persons, to his great humiliation and disgrace, all of which was done without any cause or justification on the part of Locke.”
The allegations in this petition are exceedingly vague and indefinite; but the exception filed and now under consideration is that of no cause of action.
Every act whatever of man that causes damage to another obliges him by whose fault it happens to repair it. Damages for malicious prosecutions have been very frequent in the courts. And the allegation by plaintiff that defendant caused him to be arrested and arraigned, taken with other essential allegations, is sufficient to sustain a cause of action, although petitioner also alleges in his petition that the district attorney subsequently “dismissed the case or prosecution.” Such action on the part of the district attorney may not be a final disposition of the cause, but it (the cause) is terminated . for the present. Barton v. Kavanaugh, 12 La. Ann. 332.
The prosecution of a cause does not always involve a trial. It may be the institution or commencement of a criminal suit, as well as the pursuing of the charges made to final judgment on behalf of the state. But the suit must be instituted by some officer whose duty it is to prosecute criminals to amount to a prosecution. In this instance it appears that the prosecution had terminated in a nolle prosequi entered by the district attorney ; and plaintiff therefore had the right to-institute this suit in damages.
“Want of probable cause” is generally alleged in a petition in cases like the present, while “probable cause” constitutes a defense-to an action for malicious prosecution; and defendant may show that the facts are of such a character as warranted him, a man of' ordinary care and prudence, in filing the complaint. The allegation in plaintiff’s petition is sufficient.
“That George Locke, in order to carry out his wicked and malicious designs, and to harass, and annoy petitioner,” etc.
It is further alleged in the petition that defendant caused the district attorney to file an information against him (plaintiff) under which he was arrested and arraigned in ■court, which allegation, though vague, is sufficient to admit of evidence going to show that the defendant made an affidavit before the district attorney, or that he caused others to make affidavits, charging plaintiff here with having committed the crime mentioned.
The judgment appealed from is reversed, and the case is remanded to be proceeded with in accordance with law.