Lueck v. Heisler, 87 Wis. 644

87 Wis. 644 | Wis. | 1894

Newman, J.

Process fair and regular on its face protects the officer who serves it. The converse also is true. Process which is not fair and regular upon its face does not protect the officer who serves it. To be fair and regular upon its face, process must at least contain in some form, however informal and abbreviated, substantially an accusation of a criminal offense. It must state an offense at least colorably, or it is void. Hall v. Rogers, 2 Blackf. 429; Baldwin v. Hamilton, 3 Wis. 747; Gelzenleuchter v. Niemeyer, 64 Wis. 316; Frazier v. Turner, 76 Wis. 562. Certaihly, then, it cannot be deemed to be fair and regular upon its face if upon its face it appears affirmatively that the facts alleged do not constitute an offense. In either case, it fails to show a subject matter within the jurisdiction of the magistrate. One element necessary to constitute the offense of obtaining goods by false pretenses is that the seller be deceived by the pretense and part with the’goods on the faith of it. The warrant on which the plaintiff was arrested, and the complaint as well, states that the defendant knew at the time the falsity of the pretense alleged. Of course he did not rely upon its truth. He was not deceived by it.

The law under which a process issues is a part of the process. The officer is bound to know what the law is. If his process is bad upon its face, he must take notice of that fact. Grumon v. Raymond, 1 Conn. 40; Lewis v. Avery, 8 Vt. 289; Clayton v. Scott, 45 Vt. 386; Fisher v. McGirr, 1 Gray, 1; Ely v. Thompson, 3 A. K. Marsh. 70; Milligan v. Hovey, 3 Biss. 13; Sprague v. Birchard, 1 Wis. 457; Grace v. Mitchell, 31 Wis. 533.

So the warrant on which the plaintiff was arrested was not fair upon its face. It showed upon its face that it was issued in a case in which the magistrate had no authority to issue it, and the officer was bound to know its infirmity. He is not protected by the warrant. This makes a clear case for false imprisonment against the defendant Schluche-Toier; and, being unprotected by his warrant, he may be liable for malicious prosecution also upon the same facts, if it also appears that he was a party to a malicious prosecution of the plaintiff by the defendant Heisler; for the two causes of action are not incompatible and may be joined in the same action. 14 Am. & Eng. Eucy. of Law, 17, and cases cited in note 1.

Whether the defendant Heisler is also liable for false imprisonment may be a question of some doubt. He claims, and the testimony in some aspects seems to support his claim, that he had no agency in causing the arrest, beyond the mere making of the complaint; that he neither advised nor asked that a warrant should be issued or served, much less the defective warrant which was issued and served. There- are cases which hold that the person making the complaint is not liable if he state the facts to the magistrate, even if such facts do not authorize the issuance of a warrant. If the magistrate put a wrong construction on such facts, mistaking the law, no one is liable. 7 Am. & Eng. Ency. of Law, 681, and cases cited in note 1. Rut it would seem that such immunity should shield only those whose complaint is made in entire good faith and without any ulterior unlawful purpose.

But it is not necessary to inquire very carefully whether the defendant Heisler is liable for a false imprisonment. Possibly his agency in the arrest under the void warrant was not sufficiently direct and proximate to make him liable on that cause of action. However that may be, the evidence was easily sufficient to support against him the action for a malicious prosecution. The evidence fully justified the jury in finding that he originated and inspired the proceeding, that it was all in his interest, and that his purpose in instigating it was the collection of his debt. This was an unjustifiable use of the crimipal process. Its use for that purpose is malicious prosecution. 14 Am. & Eng. Ency. of Law, 48, and note 3; Spain v. Howe, 25 Wis. 625.

It was claimed on the trial, and the evidence tends to show, that the defendant Schluckebier was a party to this unlawful use of the criminal process; that he had knowledge of Heisler's unlawful purpose in starting the prosecution, and, knowing it, acted in his interest so as to aid and abet his unlawful scheme. This, no doubt, .makes him liable upon this cause of action. The evidence is sufficient to support the verdict against him on that ground. And if the criminal prosecution was instituted for the purpose of collecting a debt, that fact alone justifies the jury in finding that it was without probable cause. Kimball v. Bates, 50 Me. 308 ; Paddock v. Watts, 116 Ind. 146. Besides, both the complaint and warrant show on their face that it was without probable cause. They both show that Heisler knew that no offense had been committed. And the defendant Sehluekebier was bound to know what the warrant disclosed upon its face.

But it is objected that because the complaint fails to state an offense, and the warrant is void, no prosecution was, in .legal contemplation, commenced. But it is no defense to show that the affidavit made by the prosecutor is insufficient in law to authorize a prosecution. Bell v. Keepers, 37 Kan. 64; Stocking v. Howard, 73 Mo. 25. An action for malicious prosecution may be maintained where the court has no jurisdiction, if the proceedings are malicious and unfounded, and without probable cause, and occasion legal damages to the party accused. Stone v. Stevens, 12 Conn. 219.

Again, it is objected that it does not appear that the prosecution is terminated. It is true the warrant is still in the hands and under the control of the defendants. It has not been returned to the justice who issued it. If the right of the plaintiff to maintain an action of malicious prosecution depends on its being returned, there is little probability that it will be returned. So the prosecution is, in effect, ended. It is said that all that is necessary is that the particular prosecution or proceeding shall have been disposed of in such a manner that it cannot be revived, and that the prosecutor, if he intends to proceed further, must institute proceedings de novo. 14 Am. & Eng. Ency. of Law, 31. It is clear that if Heisler intends to proceed further in prosecution of that alleged offense he must begin anew. The original prosecution has been long abandoned because of the inherent impossibility of proceeding in it. It may safely be held, for the purposes of this action, to be at an end.

Whether the action should be sustained as one for false imprisonment or one for malicious prosecution, in either case it was a proper case for punitive damages. Hamlin v. Spaulding, 27 Wis. 360.

The opinion or advice of the magistrate is irrelevant on the issue of want of probable cause. He was not competent to give an opinion. He was riot shown to be either learned in the law or a person admitted to practice. Sutton v. McConnell, 46 Wis. 269.

The offer of defendants to show that the action was being prosecuted by champertous agreement between the plaintiff and his attorneys was made during the cross-examination of the plaintiff and while the plaintiff was making his case. It was refused, apparently, on the ground that it was not proper cross-examination. The general rule certainly is that the cross-examination of a witness must be restricted to matters brought out on his examination in chief. If it is desired to examine the witness upon other matters, the cross-examining party must make the witness his own and call him as such. The offer was. not renewed when the defendants had the right to introduce their own evidence. Evidence of the character of that offered was competent to be received in the case, but the order in which evidence shall be received is in the sound discretion of the court. It cannot be admitted that the defendants had a strict right ■ to have this evidence injected into the plaintiff’s case. Its rejection at that point in the trial cannot be held an abuse of discretion.

It is assigned as error that the court did not instruct the jury specially on the law applicable to the question of probable cause. It is perhaps a sufficient answer to this objection that the court was not asked to instruct specially upon that question. Austin v. Moe, 68 Wis. 458. It is not easy to see how the defendants are injured by the court’s failure to charge upon that point more fully than it did. A more full charge must have been to the disadvantage of the defendants. The complaint in the criminal prosecution showed on its face that there was no probable cause to believe the plaintiff guilty of an offense. Pretenses different from that named in the criminal complaint were attempted to be proved on the trial of this action; but no attempt was made to prove that they were false, or that Heisler had any information upon the subject of their truth or falsity. Besides, if the criminal prosecution was inspired by the purpose of collecting the debt, that itself was proof of want of probable cause. More full instructions on this point could have been no benefit to the defendants.

The case seems to be substantially free from errors, and should be affirmed.

By the Court.— The judgment of the circuit court is affirmed.