88 Wis. 473 | Wis. | 1894
Neither the sufficiency 'of the complaint nor the warrant issued thereon is questioned. Upon being brought before the justice, and the warrant being read to the plaintiff, she manifestly pleaded guilty to the same,^ and was thereupon sentenced as mentioned. It is not alleged — certainly not sufficiently alleged —■ that such judgment was procured by any fraud, misrepresentation, deceit, or circumvention practiced upon the plaintiff. Mo appeal has ever been taken from that judgment. The prosecution was thus finally determined against the plaintiff. These things being so, the question recurs whether this action for malicious prosecution can be maintained.
To sustain an action for malicious prosecution, the failure of the proceedings against the plaintiff must be alleged and proved. Woodworth v. Mills, 61 Wis. 44; King v. Johnston, 81 Wis. 578; Lowe v. Wartman, 47 M. J. Law, 413; Comm. v. McClusley, 151 Mass. 488; Stewart v. Sonneborn, 98 U. S. 187; West v. Hayes, 104 Ind. 254; 2 Greenl. Ev. sec. 452; Herman v. Brookerhoff, 8 Watts, 240. Some courts go to the extent of holding that such conviction of the plaintiff of the offense charged, before a justice of the peace having jurisdiction, is conclusive evidence of probable cause of the plaintiff’s .guilt of the offense for which he was so prosecuted. Whitney v. Peckham, 15 Mass. 243; Cloon v. Gerry, 13 Gray, 201; Dennehey v. Woodsum, 100 Mass. 195. In Iowa it is held that such conviction is only
By the Court.- — ■ The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.
