| Mo. | Oct 15, 1888
The petition states three causes of action. The first is for malicious prosecution, and the second for false imprisonment, both relating to
The answer is a general denial.
It appeared at the trial that defendants, in July, 1885, came before a justice of the peace in Gasconade county, and complained that plaintiff had bought some oak shingles or boards of one Jarvis, who had been making them from timber of defendants ; that the boards belonged to them and were on plaintiff’s premises, etc. After some conference, the defendants prepared an affidavit and search-warrant by filling up blanks furnished by the justice. They both subscribed the affidavit. The justice then signed the warrant. The affidavit alleged : “ That, on or about the twenty-second day of July, 1885, Simon Boeger, or some person unknown had received, taken and carried away from the premises of Langenberg and Stoenner, in Boulware township and county of Gasconade, the following goods and chattels, the property of Langenberg and Stoenner, that is to say, one lot of oak shingles, between five and six hundred, made by Sam Jarvis out of timber belonging to Langenberg and Stoenner for the erection of a dwelling-house on the premises of Langenberg and Stoenner, and that they have reasonable grounds to suspect, and do suspect that they are concealed on, or about the premises of Simon Boeger of the township and county aforesaid.”
The search-warrant (after other recitals) commanded the officer to search the plaintiff’s premises for the property, and if found to bring the same, and also the plaintiff before some justice of the peace of the county to be dealt with according to law. The warrant was returned executed by searching the premises of plaintiff and finding there the shingles and by bringing the body of plaintiff into court. The justice’s docket showed that, a few days later, plaintiff was discharged
The plaintiff also offered evidence tending to show that the information, on which the third cause of action was predicated, was filed by the prosecuting attorney ; that defendants instigated it, and that upon a trial plaintiff was acquitted by a jury.
The evidence need not be set forth in detail. The material parts not already mentioned will be noted in the progress of this opinion.
At the close of plaintiff’s case, the court instructed that plaintiff could not recover on any of his causes of action. ' Accordingly the jury returned a finding for defendants on each of them. After the denial of his motion for a new trial, plaintiff appealed.
I. An action will lie for causing the' issuance of a search-warrant maliciously and without probable cause. To sustain it, the plaintiff must establish (among other things) want of probable cause on the part of defendant with reference to the action actually taken by the latter in the matter complained of.
But a person making complaint to a magistrate is not necessarily answerable for whatever judicial action the magistrate of his own motion may take in the premises. If the magistrate misconceives the proper remedy, without the suggestion, or intervention of the complainant in that particular, the latter is not liable for such error on the part of the former. The complainant is responsible for the complaint he actually makes and for such action thereon as may be lawful and proper in view of it. In the present case,- however, the complainants not only made affidavit of facts before the justice, but assisted in writing out the warrant for his signature. This tended to show their participation, in the issue of the warrant, irrespective of the statements in their affidavit. The warrant, in so far as it commanded the arrest of plaintiff, was illegal, the affidavit on which it was founded being
Evidence tending to show that the plaintiff was restrained of his liberty at defendant’s instance, by reason of process which the magistrate had no authority to issue in the premises, is sufficient to sustain a count for false imprisonment. Neither malice nor want of probable cause need to be proved to support such an action.
Under the present law of Missouri, a search-warrant properly should not contain a clause of arrest. The function of such a warrant is to cause a search to be made by an officer at a particular place for personal property stolen or embezzled and to secure the production of the property, if found, before the magistrate. If the facts stated in the sworn application for it also constitute a charge of crime, the magistrate may issue a separate warrant of arrest, though in that event the insertion of such order in the search-warrant would be a mere irregularity not vitally affecting the legality of the process. But, in the case at bar, the facts stated in the preliminary affidavit were wholly insufficient to justify the arrest of plaintiff. Hence there was evidence to go to the jury upon the count for false imprisonment.
The first count (for malicious prosecution) alleged the same facts concerning the procurement of the search- . warrant, but the'evidence offered did not tend to show any want of probable cause. on defendants’ part in the premises.
A definition of probable cause sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. The complete legal idea expressed by that term is not to be gathered from a mere definition. But, perhaps, with reference to many practical cases, it may be nearly accurate to say that probable cause consists of a belief in the charge or
After the return of a search-warrant issued by a justice, his further proceedings are by law limited to the making of such orders regarding the property as may then appear proper. In this case no such order was made. The action of the justice discharging the plaintiff at the costs of the prosecuting witnesses is referable to the order of arrest, improperly .included in the search-warrant. A dismissal by the prosecuting attorney ( against the objection of the complainants, as here shown) of an illegal warrant of arrest does not raise any inference of want of probable cause on the part of.complainants in obtaining it, though they may be liable for false imprisonment on a proper showing (as already indicated with reference to the second cause of action).
Defendants could be held, in any event, to but one liability on the same facts. A recovery on the second count would be a bar to a judgment on the first count in this case. It is hence unnecessary to state more at length the reasons for our conclusion that no want of probable cause was shown to support the first cause of action. The ruling of the trial court, in its application to that count, was therefore correct.
II. Regarding the third count, the plaintiff showed an acquittal by jury on a trial of an information brought by the prosecuting attorney at defendants’ instance against plaintiff. It is claimed that the
For the error made in not submitting the second cause of action to the jury, the judgment is reversed and the cause remanded, with directions to re-try that cause of action in accordance with this opinion, and after a finding on that count, to enter the judment that may then be appropriate to that finding and those already made by ,the jury on the first and third counts, which are not disturbed by this decision. The costs of this appeal are adjudged against respondents.