Caddel v. Brown

187 P. 897 | Mont. | 1920

MR. JUSTICE MATTHEWS

delivered the opinion of the court.

From the transcript it appears that on July 10, 1915, one Joe Le Fors swore to a complaint in a justice’s court of Big Horn county, charging one John H. Caddel with the larceny of a steer belonging to the wife of respondent Brown. Preliminary hearing was had and the magistrate dismissed the complaint. Thereupon Caddel brought his action charging that respondents “maliciously and without probable cause, caused, instigated and procured the said Le Fors to make and file” the complaint. At the close of appellant’s testimony, respondents moved for judgment of nonsuit, which motion was overruled; having introduced testimony, respondents moved for a directed verdict, which motion was sustained; directed verdict returned and judgment thereon entered. Appellant then moved for a new trial, which motion was denied. He appeals from the judgment and from the order denying his motion for a new trial.

[1] It appears from the evidence that Le Fors was a stock detective, whose salary was paid partly by the state of Wyoming and partly by an association of stockmen in that state; while one Moses held a like position in Montana, receiving some part of the salary from an association of which Brown and Taintor were members. By a private agreement, these two men covered Southern Montana and Northern Wyoming, jointly. In June of 1915, one Thad Shipman made an alleged confession to Moses of a partnership between himself and Caddel to steal unbranded calves and colts, dividing the spoils. He made an affidavit setting out in detail, among other alleged transactions, the taking of the animal in question from a cow belonging to Mrs. Brown, and naming several men who could corroborate him as to the ownership of the cow and the identification of the animal as her calf. Moses turned the affidavit over to Le Fors, who was then staying nights at the Taintor place in Montana, to handle the matter alleged. Le Fors investigated the several charges, interviewed the parties named, and, it seems, consulted two attorneys in Sheridan, Wyoming — W. S. Metz and D. P. B. Marshall. Metz was representing the man Shipman, while Marshall’s connection with the matter is not entirely clear. On cross-examination as a witness for the defense, in answer to a question concerning his activity in getting the witnesses together for consultation with County Attorney Bunston, of Big Horn county, Marshall answered: “I felt that I was working in the interest of my client, Mr. Brown, who had been a client in other matters, and also doing what the county attorney had requested.” He met Bunston in Billings and laid the matter before him, giving him a copy of the Shipman affidavit. As to whether Marshall went to Billings for that purpose or on other business, as to his purpose in laying the matter before the county attorney at all, and as to who, if anyone, paid his expenses on that trip, the record is silent.

Bunston did not take Marshall’s version of the facts, but stated that he desired to talk with the parties named personally and requested Marshall to get them together at Sheridan. This Marshall did, and Bunston made an independent investigation; talked with all of the parties named, secured affidavits, and determined in his own mind that' the evidence was sufficient on which to proceed as county attorney, and so advised Metz and Marshall. In consulting with Brown, his only inquiry was as to the ownership of the brand alleged to have been on the mother of the animal in question, and it does not appear that either Brown or Taintor were advised or knew, prior to the filing of the complaint, that a criminal proceeding was to be instituted.

The theory of the appellant is that Le Fors, Metz and Marshall were acting as agents of respondents. The only evidence introduced to support this theory is that, prior to the commencement of the action, Taintor directed certain men to get Brown and one Jack Burke, who, it was said, could identify the animal, and go to Caddel’s place and get the steer; that Caddel sent a man to demand its return and, before refusal, Brown consulted Le Fors and Moses; that, after the commencement of the action, respondents employed Metz and Marshall to assist in the prosecution. Two witnesses, employees of Caddel, testified that, on the day of the preliminary examination, Brown, in a barroom, stated that Taintor had told him to go ahead with the prosecution, and that he (Taintor) would stand all the expenses. It is not contended that the evidence discloses an agreement to this effect before the filing of the criminal complaint, and Brown testified that all he said was that he and Taintor were to pay the private attorneys, half and half.

Marshall, though not employed by Brown, “felt” that he was working in the interest of his client; but his only connection with the case was to call certain matters to the attention of the proper public official. Metz was employed by Shipman and his activities were on behalf of his client. Le Fors was acting in the interest of the stock associations generally and signed the complaint at the suggestion of the county attorney.

County Attorney Bunston testified that he acted on his own initiative, without consulting or advising with Brown or Taintor, and only after a careful and independent investigation, and determination that he had a case calling for action in his official capacity; and he proceeded in the matter without as much as advising respondents that he proposed to do so.

The fact that respondents employed private counsel in the case might import malice, had they been instrumental in procuring the complaint to be filed. Under all the facts disclosed in the reeord, they were not even consulted, and what then took place, after the filing of the complaint, is not material to the issues in this case.

The trial court had the opportunity to consider the evidence on the motion for judgment of nonsuit. On motion for directed verdict and again on motion for a new trial, and, in the light of the facts disclosed in the record, we find no error in its rulings on these motions.

Other errors are assigned; but, as appellant failed to connect the respondents with the institution of the proceeding complained of, it is not necessary that they be considered.

The judgment and order denying a new trial are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway and Hurly concur. Mr. Justice Cooper, being absent, takes no part in the foregoing decision.