178 N.W. 876 | S.D. | 1920
Plaintiff brought this action, alleging that defendant wrongfully, falsely, maliciously, and without probable cause accused and charged plaintiff with having murdered her son, and caused plaintiff to be arrested and prosecuted on said charge thereby greatly injuring him in his good- name, reputation,, and standing in the community in which he lived; that notwithstanding plaintiff was discharged upon a hearing duly had according to law, the defendant wrongfully and maliciously, and -wholly without cause, thereafter continued to falsely charge and assert that plaintiff was guilty of murdering her son. 'Upon the trial' verdict was rendered in favor of plaintiff. From an order granting a new trial plaintiff appeals.
The order granting a new trial specified as grounds therefor: First, that the court committed error in law in 'not granting defendant’s motion to direct a verdict in her favor, the undisputed evidence showing that she mlade a full and fair statement of all material facts then known to her to an attorney at law, who advised the prosecution; second, that the prosecution was at the instance of the state’s attorney who, after personal investigation, advised the same, not relying upon the statements of the defendant, and that the -court erred in not directing a verdict in her favor on this ground; third, that a fair and impartial trial was not had on the merits by reason of the misconduct of attorneys
“That when a party communicates to counsel in good standing all the facts bearing upon the guilt of the accused of which he has knowledge, or could have ascertained by reasonable diligence, and in good faith acts upon the advice of such counsel in prosecuting the party accused, he cannot be held responsible for malicious prosecution.”
In this case the third ground assigned for granting the new trial discloses that the trial court was of the view that the error of the court in permiting the misconduct of attorneys and audience was such as to deprive the parties of a fair and impartial trial. We are of the view that where the trial court is satisfied there has been a mistrial, or a clear miscarriage of justice, growing out of a failure of the court itself to discharge the duties of its office, the court has inherent power to grant a new trial by reason thereof at any time while the question of a new trial is pending before him, and' on, this ground he may grant a new trial, without application or motion by either party, wholly upon his own motion. We are of the
The order appealed from is therefore affirmed, at respondent’s cost.