48 Neb. 133 | Neb. | 1896
In tbis action Gustave Kaessner sought to recover damages in the sum of $20,000'alleged to have been suffered by him as the consequences of his malicious prosecution by Jonas Fry, the marshal of the village of Elk-horn, and a number of others, who were made defendants, but as to whom no more specific reference need be made, as, during the trial, a nonsuit of plaintiff’s cause of action was entered as to all of them. A trial of the issues was had, and the plaintiff in the district court was accorded a verdict and judgment against Jonas Fry in the sum of $350. Error proceedings have been prosecuted to this could on behalf of Fry.
During a portion of the year 1890 one August O. Uhtof was running a saloon, or was engaged in the business of selling liquor, in a building or room which belonged to Gustave Kaessner, situated in the village of Elkhorn. As authority to engage in such business, Uhtof had obtained from the village board what was issued and purported to be a license for his conducting such business one year, commencing January 20,1890, and terminating January 20, 1891, for which he was to pay quarterly in advance. He had paid on January 19, 1890, $125, April 19, 1890, $125, and no more. Differences and trouble arose between Uhtof and the village board, probably more especially in regard to an occupation tax, which the board demanded of him and he refused. The board took counsel and were advised by an attorney, after he had been fully informed upon and fully investigated the subject, that Uhtof’s supposed license to sell liquors was void, and that he was liable to arrest or that his place could be closed; that the latter was the proper and the better course to pursue, and the one favored by counsel.
Q. You may state what the facts were, as known to you, regarding the actual selling of liquor by Gustave Kaessner here on the morning of his arrest, September 18.
A. He was.
A. I saw bim.
Tbe marshal, between 10 and 11 o’clock of that morning, went to tbe saloon, without a warrant, and after some resistance from Kaessner and also from Ubtof, who was then in tbe saloon, and after calling in help, finally arrested Kaessner as be stood behind tbe bar and took bim to tbe jail and put bim in and left bim there until be (tbe officer) went to tbe residence of a justice of tbe peace, about three-quarters of a mile distant, and with tbe justice returned to tbe village. A complaint was prepared and verified by tbe marshal, charging Kaessner with selling intoxicating liquors without first having obtained a license authorizing such selling by bim, and a warrant was issued. At about 1 o’clock in tbe afternoon Kaess-ner was taken before tbe justice of tbe peace, David Smith, to have bis bearing and applied for a change of venue, and tbe case was transferred to be beard before Ed A. Shaw, a justice of tbe peace in tbe city of Omaha. Fry took Kaessner to Omaha and kept him in a hotel over night, and tbe next morning took bim to tbe county jail and left bim there, where be was kept something more than a day, when be furnished bond and was released. ' On October 15, 1890, Kaessner bad a bearing and was discharged.
One proposition raised by tbe assignments of error, and mainly depended upon by counsel for plaintiff in error, is that tbe verdict was not sustained by sufficient evidence. Tbe testimony discloses that Ubtof was conducting tbe saloon business in tbe village of Elkhorn without any valid license or authority so to do; also, that Kaessner, on tbe morning of tbe 18th of September, 1890, was “tending bar or running tbe saloon for Ubtof, and sold intoxicating liquor at that time and place, and further, that Jonas Fry was tbe marshal of tbe village; that be knew all tbe facts in regard to Ubtof’s carrying on tbe business without legal right to do so; that Fry saw Kaessner in tbe saloon selling liquors on tbe morn
Reversed and remanded.