*1 932 any to the Civil mayor chief made recommendations
police nor separation personnel than the notation on the Service Commission other form, which stated: discharge are as Section 9.05 charges
“The written follows: (‘Removal Working Period’), Test of the Rules Employеe during Regulations of the Civil Service Commission.” it misconduct or failure of The Commission had before no statement of officer, never met performance part probationary on the appointing any might be referred to them complaints consider endorse on secretary had the of the Commission personnel, simply by the employee the dismissal of the the face of the Commission records secretary. steps These did not signing the nаme of the chairman in section 10—1—14 or rules procedure conform with the outlined ruling may trial be affirmed on pursuant made thereto. Since the court’s the other matters relied ground, unnecessary this to comment upon by appellants appeal. of the trial court is affirmed.
Accordingly, the decision Affirmed. REARDON,
GREEN, J., J.,P.’ concur. al., MOTORS, INC., PRATT, Plaintiff-Appellant, v. KILBORN et VICTOR C. Defendants-Appellees. 13966 Fourth District No.
Opinion May 1977.
REARDON, J., dissenting. Decatur, Daykin,
Thomas R. appellant. for Denz, Lowe, Moore, Decatur, See, Rodgers & appellees. for Mr. PRESIDING GREEN opinion delivered the court: JUSTICE Motors, Plaintiff Inc., Victor C. Pratt sued defendants Kilborn and John Kilborn in the Circuit County seeking damages Court Macon for prosecution. motion, malicious Upon defendants’ plaintiff’s seсond amended complaint was dismissed in bar of action failure to state a cause of action. Plaintiff affirm. appeals. We
The parties argue that the tort essential elements of the of malicious prosеcution are as stated in v. Manufacturing Freides Sani-Mode Co. 291, (1965), 286, 33 Ill. 2d 211 N.E.2d 288: “(1) the original commencement or continuance of an criminal or judicial civil proceeding, (2) legal by present its causation defendant against plaintiff was in original who the defendant (3) proceeding, its present bona termination favor fide plaintiff, (4) the probable proceeding, (5) absence of cause for such malice, the presence of (6) damages аnd to Each resulting of these elements must be present.” Defendants maintain that the was it did complaint insufficient because properly not allege (1) original judicial that the commencement of the them, legally by (2) caused and the absence of issues, for the proceeding. initiation of the With reference to these purchased complaint stated substance: Plaintiff an automobile from corporation many defendant then returned it times because of Ultimately, pursuant by malfunctions. to assurances defendant’s employees repaired, that all had been plaintiff malfunctions delivered to corporation payment. defendant in the sum of *144.16in Plaintiff сheck having then learned that of the assurances malfunctions been payment corrected were false and the check. Defendant stopped on Kilborn, corporation through lodged defendant its then prеsident, complaint county staff of malicious inaccurate prosecutor by telling prosecutor only plaintiff assistant had *144.16.The stopped payment deprive check to defendants of their tell between the disрute parties defendants the assistant about concerning sufficiency repairs made this omission bad faith. allegation that the statement made complaint general contained untrue but later in the partially the defеndants to the assistant was showing in more the statement the statement is set forth detail parties. incomplete dealing a true but account of between be incompleteness also statement thinking that had been prosecutor’s payment stopped staff into
misled thereby had purely plaintiff to deceive defendants and plaintiff then alleges committed a crime. The *3 charging with the offense of subsequently plaintiff information 1973, 1(d)). As (Ill. ch. set forth deceptive practices par. Rev. Stat. 17 — dismiss, charged plaintiff with in to that the motion information that, the intent to deceptive practices the committing offense of corporation, property, its defraud defеndant and obtain control over knowing of that the plaintiff payment money did deliver a check for paid by depository. not be the check would alleged the are to have questions The whether defendants they the сriminal and whether legally caused the initiation of probable probable question cause are interrelated. The so without defendant, seeking where the after the ordinarily cause arises in a case so, advisеd him do prosecutor being appeared and to advice of the plaintiff charging to a judicial complaint a officer and swore before 162, 164, v. Tucker (1918), App. 214 Ill. is Brown with a crime. Such a case that: well-accepted the court recited rule where goes a case a beginning a before to prosecuting “When witness good to him in faith all facts competent discloses attorney and supposed offense as well аs information as to a and he has information, the advice of such his then acts on and source as he will be considered attorney prosecution, and criminal starts a if even prosecution, for such having probable had cause party guilty is found not charged afterwards the to be charged.” offense
There, alleged swearing tortious acts to the and are officer, presenting judicial clearly it acts which cause the to subsequеnt prosecution. properly If has obtained the prior the defendant to prosecutor, probable advice he is deemed to have had liability initiate immune prosecution doing the criminal and is from so. Here, tоrtious acts were the defendants went to the prosecutor complained given had a check and then plaintiff them stopped it. payment allege here was to sufficient at information, the time defendants went tо gave they, defendants, did not plaintiff have cause to believe had committed crime charged. with which he was later question more difficult is whether the is sufficient to allege that prosecutor legally defendants to the complaining caused the subsequent prosecution of holding No Illinois case so has been called to attention. In v. our Manufacturing Freides Sani-Mode Co. permitted the court recovery against a defendant had whо transmitted information prosecution appeared and then as a witness before the grand jury.
In authority, view of the lack of Illinois we deem the Restatement of Torts persuasive. discussing to be In the elements of cause of action for malicious prosecution, states:
“Comment:
g. Influencing public private gives A who prosecutor. person public supposed official criminal information another’s misconduct, of which ignorant, obviously is official causes the institution of such official subsequent proceedings may begin as the initiative, on his own such giving but information or even making an accusation of criminal misconduct does constitute a procurement of the if proceedings initiated the officer it is left entirely to his proceedings discretion to initiate the or not. Where a private person gives prosecuting to a officerinformation which he true, believes to be the officer in exercise proceedings uncontrolled discretion initiates criminal based information, informer not liable under the rule stated this though proves Section even the information to be false and his *4 belief was man thеrein one which a reasonable would not entertain. The exercise the officer’s discretion makes the of prosecution initiation the his from protects liability of of own and person the led the whose informatiоn or accusation has officer to initiate the proceedings.
If, however, false, the is known to be by giver information the impossible the discretion becomes intelligent exercise of officer’s person giving procured by based thereon is prosecution and a charge private person In a information. order to the false official, proceedings by public initiation of for the responsibility proceedings to have the appear that his desire it must therefore direction, kind pressure any or of expressed by request, initiated decision to commence determining factor the official’s was the himby furnished that the information prosecution оr to be false.” Restatement of acted was known which official (1938). Torts, §653, g, at 386 Explanatory Notes comment allege that the defendants The instant complaint to We deem the prosecutor. the discretion of the controlled true if staff was allege prosecutor’s that made to the statement giving knowingly false indicates that incomplete. commentary The commentary of discretion. negates the officer’sexercise informаtion by information withholding of makes no reference to the complainant argument can made complainant. Strong be later the offense indicating the commission of give truthful information prevent information that would charged and to withhold other negate also being from a crime would complained conduct occurred alleged That is not to have exercise of discretion. prosecutor’s payment on subsequent stopрing and the here. The issuance of a check deceptive clearly the maker is insufficient to constitute by check requires the Criminal Code which practice 1(d) under section 17— will not knowledge that the drawee bank the check be made with the here, prosecution legal cause of the honor it. Under the facts on the bringing the information prosecutor shown to be the act of the him defendants constituted that the facts stated to mistаken belief deceptive practice. is affirmed. judgment dismissing
TRAPP, J., concurs. REARDON, dissenting: Mr. JUSTICE this case which agree majority. posture I with the In the cannot are well-pleaded allegations all to us comes that the State’s Following I conclude principle true. presumptively intentionally of the defendant president misadvised Attorney was want was a total prosecutor there Although unknown corporation. I conclude process. issuance of the criminal for the intentionally only because issued process the criminal him facts of disclose to failure to by Kilbom’s misadvised essential tíiat the criminal pleadings We know from dealings with *5 in appellant’s appellant tеrminated favor and that injured. these I pleadings From am forced to conclude malice Attorney directly motivated the to the State’s occasioned process. of the criminal issuance Perhaps thorough should have been more in the event, ascertainment of the In any (if failure) facts. his failure awas should not prosecutorial immunity occasion the extension of his thereby defendants and free responsibility them from for their malicious conduct.
I do not facts prosecutorial construe these as unwilling errors am leave the victim a remedy. without I
Accordingly, dissent. BECK, E. Plaintiff-Appellee, CATHERINE v. CAPITOL LIFE INSURANCE
COMPANY, Defendant-Appellant.
Fifth District No. 76-178 Opinion May 1977.