157 P. 148 | Or. | 1916
delivered the opinion of the court.
1. While it is not directly so stated in the complaint, we must necessarily infer that the plaintiff was convicted in the Justice’s Court. We deduce this conclusion from the fact that it is stated that the criminal case was appealed to the Circuit Court. In such cases the defendant alone can appeal, and only when the judgment is that he pay a fine of not less than $20 or be imprisoned not less than ten days: Section 2510, L. O. L.
2. It is thus requisite to determine the effect to be given to a judgment of conviction which was reversed on appeal as relates to the allegation of want of probable cause. Many authorities hold that, especially
3. We turn to an examination of the complaint to discern whether it contains sufficient averment to overturn the conviction which we are compelled to read into that pleading. It is utterly devoid of any charge of fraud, such as bribing a jury or witnesses, suppressing testimony, or the like. The attack upon the conviction must depend upon whether perjury affecting the result is properly charged in the complaint.
4. The statement is that the present defendant “knew that said accusation in said criminal complaint charging plaintiff herein with trespass was untrue,” which complaint “the said defendant duly verified as
State v. Chadwick, 10 Or. 423; O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004); Zorn v. Livesley, 44 Or. 501 (75 Pac. 1057); State v. Malheur County Court, 46 Or. 519 (81 Pac. 368); Id., 54 Or. 255 (101 Pac. 907, 103 Pac. 446); Darr v. Guaranty Loan Assn., 47 Or. 88 (81 Pac. 565); Van Buskirk v. Bond, 52 Or. 234 (96 Pac. 1103); Morton v. Wessinger, 58 Or. 80 (113 Pac. 7); Long v. Dufur, 58 Or. 162 (113 Pac. 59); Moore v. Fowler, 58 Or. 292 (114 Pac. 472); Proebstel v. Trout, 60 Or. 145 (118 Pac. 551); McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33); Splonskofsky v. Minto, 62 Or. 560 (126 Pac. 15); Shipman v. Portland Const. Co., 64 Or. 1 (128 Pac. 989); Equi v. Olcott, 66 Or. 213 (133 Pac. 775); Purdin v. Hancock, 67 Or. 164 (135 Pac. 515); Barnard v. Houser, 68 Or. 240 (137 Pac. 227); Templeton v. Cook, 69 Or. 313 (138
By necessary inference the complaint shows a conviction of the plaintiff in a court of competent jurisdiction, but does not state enough to destroy the conclusiveness of the judgment as evidence of probable cause for the prosecution.
5, 6. The complaint upon which this action was tried was subject to the objection that it does not state facts sufficient to constitute a cause of action. This may be raised at any time, even for the first time on appeal to this court. The Circuit Court should have permitted the defendant to file his proposed demurrer and should then have sustained it.
For these reasons, the judgment granting a new trial is affirmed. Affirmed.