163 N.W. 1046 | N.D. | 1917
Lead Opinion
The action is one for damages for malicious prosecution. The complaint alleges the corporate character of the defendant under the National Bank Laws of the United States of America, and alleges that G. S. Newberry is cashier. That on or about the 6th day of November, 1914, the defendants maliciously and falsely conspired together with the intent to injure the plaintiff in his good name and credit, and wilfully and maliciously instructed the then sheriff of Foster county, North Dakota, to take steps to detain the plaintiff and deprive him of his liberty until the defendants could make a complaint and formal charge against him. Pursuant to said instructions the said ■sheriff of Foster county, North Dakota, through the sheriff of Plymouth county, Iowa, without warrant and authority in law, wantonly and maliciously and at the instigation of the defendants, apprehended the plaintiff and confined him in the county jail of said Plymouth county, Iowa, upon suspicion, and that plaintiff was so held and confined in the said county jail of Plymouth county, Iowa, on said false, unfounded, and malicious charge at the instance and instigation of the defendants from and including the 6th day of November, 1914, until and including the 10th day of November, 1914. That pursuant to said malicious ■and false conspiring together, the defendants appeared before one Bobert B. Pryor, police magistrate of the city of Carrington, Foster county, North Dakota, and maliciously and falsely and without probable cause made complaint under oath before said magistrate, charging that plaintiff unlawfully, wilfully, and feloniously on or about the 1st ■day of November, 1914, removed from the county of Foster, North Dakota, certain chattels subject to a subsisting lien in the nature of a chattel mortgage known to plaintiff, to wit, a certain Yelie automobile, well knowing such charge to be false, malicious, and unfounded, and maliciously and without probable cause procured said magistrate to
The defendants’ answer is in substance as follows: That the plaintiff did on or about the 1st day of November, 1914, commit the crime ■of unlawfully, wilfully, and feloniously removing from the county of Foster, state of North Dakota, a certain chattel, to wit, a Velie automobile upon which there was then a subsisting lien in the nature of a chattel mortgage. That the First National Bank of Carrington is a
Defendants further allege that Gr. S. Newberry, as cashier of the-First National Bank, called upon O. B. Craven, the qualified and acting state’s attorney for the county of Foster and state of North Dakota, and stated to such state’s attorney all the facts hereinbeforeset forth, in good faith, and stated all the facts connected with said transaction to such state’s attorney fully and fairly, and stated to such state’s attorney all the facts, circumstances, and conduct of said plaintiff of which the defendants had been informed; and that thereupon said state’s attorney informed said Gr. S. Newberry that there was sufficient ground for procuring a warrant causing the arrest of said plaintiff for the commission of the crime of removing property upon which there was a subsisting lien from the county of Foster, and state of North Dakota, being the county and state wherein said property was at the time of the execution of the said chattel mortgage or lien. That thereupon the said C. B. Craven, state’s attorney as aforesaid,.
The facts in the case appeár to be substantially as follows: The appellant and one G. O. Olson were engaged in the business of running an automobile garage during the year of 1914, at Carrington. They purchased the garage from W. B. Hoopes for $1,315, giving their promissory notes for the purchase price. The First National Bank of Carrington became the owner by indorsement from Hoopes of the promissory notes given by appellant and his partner for such purchase price. On or about the 10th day of August, 1914, the First National Bank took a chattel mortgage from the appellant and his partner to secure such indebtedness, which chattel mortgage covered and described three automobiles, as follows: A model 0 Yelie, 30 h. p.; one model F Yelie, 40 h. p.; and one Rambler touring car; and in addition to these certain tools, appliances, and repairs in the gargage. G. O. Olson, appellant’s partner, took care of the business of the partnership, and the appellant was the mechanic. In the month of September, 1914, Olson, together with G. S. Newherry, sold the garage and everything
It seems from the testimony that the justice of the peace did not write up his docket until some time after such preliminary hearing,, and in such docket, written up after the preliminary hearing some days, the said justice set forth the following: “After hearing the testimony for the state and the defendant N. A. Bhoads, and hearing the arguments of T. F. McCue, Esq., for defendant and C. B. Craven, Esq., for the state, it is the opinion of this court that probable cause to hold the defendant N. A. Bhoads to district court exists, but for the reason that he has already been confined in the county jail for about a month awaiting a preliminary hearing and being unable to furnish any bond for his appearance in district court, I am unwilling-to order the defendant confined in the county jail for five months more to await trial at the first regular term of district court, which convenes in May, 1915. For the above reasons the' defendant N. A. Bhoads is hereby discharged.”
Either of the automobiles described in the chattel mortgage was sufficient in value to satisfy the balance of the indebtedness which
The appellant has made several assignments of error; but, for the purpose of disposing of this appeal, we find no necessity to consider more than two of them.
The first assignment of error relates to the admission of testimony 'concerning evidence of the notice of attorney’s lien for $2,500, such notice of a lien being served by Attorney Stillman, who appeared as one of the attorneys for the plaintiff in this action. All such testimony was incompetent, irrelevant and immaterial, and had no relation whatever to any issue involved in the case. The question of the good faith of the attorneys and the plaintiff in bringing this action is not an issue, .and any testimony admitted with reference thereto is incompetent, irrelevant, immaterial, and prejudicial. If plaintiff believed he had .a cause of action against the defendant, he had a perfect right to employ •attorneys to prosecute such action, and had a further right to make a contract to pay them for their services, either a stated sum or a contingent fee. The further testimony complained of under this assignment of error is the admission of testimony received under objection from Newberry regarding a check of W. A. Malloy, about which the Bank of Oberon phoned to the First National Bank of Carrington, upon which bank the check was drawn, the First National Bank of Carrington replying to the Bank at Oberon, stating that Malloy’s check was no good. Such testimony could have no relation to the issues in this case. It was highly incompetent, irrelevant, immaterial, and prejudicial. The objection to all of such testimony should have been sustained, and it was reversible error not to sustain the objection to ■such immaterial and prejudicial testimony.
The second error to which we allude, being error assigned as number 3, relates to the admitting in evidence of “exhibit 5,” being the record of S. J. Malen, Justice of the Peace, before whom the preliminary hearing was had, at which preliminary hearing the defendant,
“Procedure. Accused Discharged. — After hearing the evidence on behalf of the respective parties, if it appears either that a public offense has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to-be discharged by an indorsement on the complaint over his signature to the following effect: ‘There being no sufficient cause to believe the within named-guilty of the offense within mentioned, I order him discharged.’ ”
This is the law as to what the committing magistrate shall do, and the section is mandatory as to what shall be indorsed on the complaint, for the section says “must order the defendant to he discharged hy an indorsement on the complaint over his signature to the following effect. . . .” Then follows the words which the committing magistrate is required to indorse on the complaint. The committing magistrate in the case at bar discharged the defendant at such preliminary hearing, but did not make the indorsement required by the above section upon the criminal complaint as he should have done, and which is mandatory upon him to do. The committing magistrate was without authority to make any other indorsement or record with reference to the dismissal of the charge of which defendant stood accused, except the record made mandatory by § 10,609. The entry made by the justice of the peace at the close of the hearing, or several days afterwards, which set forth a great deal of matter, all of which was unlike and of a different nature than that required by § 10,609, was incorrect and contrary to law, and it was prejudice to admit as evidence that part of exhibit 5 which related to the reasons for the discharge of the defendant on such preliminary hearing, and the further part where it is stated that “it is the opinion of this court that probable cause to hold the defendant to the district court exists, but for the reason that he has already been confined in the county jail for about a month awaiting a preliminary hearing; and, being unable to furnish any bond for his appearance in district court, I am unwilling to order the defendant confined in the county jail for five months more to await trial at the first regular term of the
The appellant and one G. O. Olson were indebted to the First National Bank in the sum of $1,315, which was represented by a note and chattel mortgage upon certain property hereinbefore described. The bank had purchased such paper from W. E. Hoopes. It is conceded that the debt'had all been paid except $40.60. Any one of the automobiles mentioned were worth several times the amount due upon the debt, to wit,, $40.60. Addressing ourselves to the question of whether or not New-berry stated all the facts of the case in which he made the criminal complaint to his attorneys, or whether he admitted to such attorneys, any of the facts in the case, is a question of fact for the jury, upon which we express no opinion. It is the province of the jury to determine this question upon all the testimony adduced relative 'thereto'.
The appellant in this case, who was the defendant in the criminal prosecution, was arrested and charged with the offense set forth in § 10,248, which is as follows: “Every person having in his possession or under his control any personal property upon which there is known to him to he a subsisting lien either by operation of law or by contract, who wilfully destroys, removes from the county, conceals, sells, or in any manner disposes of, otherwise than as prescribed by law, or materially injures such property or any part thereof, without the written consent of the then holder of such lien, is guilty of: 1st. A misdemeanor if the value of the property does not exceed $100; or, 2d. A felony, if the value of the property exceeds such sum.”
In the foregoing law any of the acts complained of must have been done wilfully in order to constitute a crime. There are several things, which the section says will he a crime if done, such as destroying, removing from the county, concealing, or selling, or in any manner disposing of, property upon which there is a lien. One of the crimes specified in such section is wilfully removing from the county property upon which there is a subsisting lien. The meaning of the word “wilfully” therefore becomes quite important. In penal statutes the word “wilfully” means not only that the act is done knowingly and intentionally, but it must also be done with an evil intent or with a bad purpose. See Galvin v. Gualala Mill Co. 98 Cal. 268, 33 Pac. 93; Potter v. United
The statute which we have been considering was enacted to protect the property rights only, and it would seem there should be some showing that there was an intent to deprive the lien holder of the security, or that there should be some bad purpose or intent, before there would be any justification for prosecution.
One’s good name and reputation is a priceless treasure, and one has the right to remain secure therein. It should not be made easy. to destroy one’s good name or good standing in the community. The right to enjoy one’s good name and reputation and the good opinion of others is one of greater significance, deeper importance, and of much more weight and consequence, than the enjoyment or protection of mere property right. Surely one’s good name and reputation should not be attached and destroyed for any light reasons, and the law should protect such valuable rights, certainly with as great care as it does mere property rights*
In this case there are just two elements, — that of malice and want of probable cause. Each of these elements must be present in this case in order to entitle the plaintiff to recover. The weight of the testimony must preponderate to show both malice and want of probable cause before recovery of damages can be had, though malice may be inferred where want of probable cause is proved. This, as we understand it, is the general rule in this class of cases.
We cannot discuss all the assignments of error and all the law and cases cited by each counsel, but we have given the matter careful
Concurrence Opinion
(concurring specially) : This is an appeal from a judgment against the plaintiff in an action to recover $5,000 for malicious prosecution. It appears that in 1914 at Carrington, the plaintiff and one Olson were engaged as partners in running a general automobile garage business. In August, 1914, to secure $1,315, they gave to the bank a mortgage on three automobiles, one office safe, a roll-top desk, and a lot of other property. The mortgage debt was represented by, four promissory notes, all of which became due in September, 1914,, except one note for $600, due in September, 1915; but in September, 1914, the total debt was liquidated and reduced to the sum of $40.60. Then Olson took one of the cars to Medina, North Dakota, and about,
The defense was that the warrant was sworn out in good faith and on the advice of the state’s attorney. However, it does not appear that the state’s attorney was fully advised that the mortgage debt had been reduced from $1,315 to $40.60, and that the car across the street from the bank was ample security for the small balance, and that the car in possession of Olson at Medina was worth ten times the balance. These were matters of the utmost importance, because the security was so ample and so accessible there was no possible reason for thinking that Bhoads had taken his car to Iowa to defraud the bank. If the car had been completely destroyed, the security would have been good for ten times the sum due the bank. Hence, there was no excuse for the criminal prosecution.
The purpose of a mortgage and of statutes relating to chattel mortgages is to secure the payment of an honest debt, and not to make it dangerous for a person to use his property. The automobile is made and used for rapid transit and for long drives, and its value would be greatly impaired if there were any danger in crossing state and county lines.
In this case there was not a fair trial. The record shows several gross errors manifestly prejudicial to the plaintiff. In the charge of the court it is said:
. Gentlemen: The plaintiff must prove to your satisfaction by a fail-preponderance of evidence: (1) That a criminal prosecution was instituted against the plaintiff; (2) that the defendants in this action in
Then it was said by the court: I charge that if the plaintiff is guilty of the offense which was charged against him, that is a- complete ■defense. Now that was error of the grossest kind. The plaintiff was not on trial for any offense, and there was no evidence whatever to show that he was guilty. On the contrary, the evidence showed clearly that there never was any reason for thinking him guilty. . .
Then Mr. Craven, the state’s attorney, was sworn, and against objection he was permitted to answer a question concerning his belief as to the probable guilt of Ehoads when the warrant was issued. His answer was: “I believed it then and I still do.” And thus the belief of the prosecuting attorney was thrown into the scale against Ehoads. The error was about as gross as if the judge himself had given similar testimony.
Then the court received in evidence the original summons and complaint in this action, with a notice of an excessive lien claimed by the attorneys. The only purpose of that was to prejudice the jury, and the same is true of all the other testimony regarding one Maloney and his checks and his conduct.
The court also erred in admitting in evidence the made-up record of the justice of the peace, which was in effect that while he found the defendant not guilty, he thought him guilty.
In a suit for malicious prosecution it was well to remember the terms “malice” and “maliciously” import a wish to vex, annoy, or injure another person or an intent to do a wrongful act, established either by proof or presumption of law. Comp. Laws, § 10,360. Good faith or fool innocence does not justify a wrongful act.
Every person is bound to abstain from injuring the person or property of another, or infringing upon any of his rights. Comp. Laws, § 5942, 26 Cyc.
Judgment reversed and new trial ordered.
On advice of counsel as defense to action for malicious prosecution, see notes in 18 L.R.A. (N.S.) 49 and 39 L.R.A. (N.S.) 207.
On advice of counsel as defense in action for malicious prosecution, see note in 9 Am. St. Rep. 837.
Concurrence Opinion
I concur in tbe opinion of Mr. Justice Grace, though not in the dicta therein contained in regard to what does and what does not constitute a crime.
Concurrence Opinion
(specially concurring) : I believe it was error to admit the evidence in regard to the attorney’s lien, and also the recitals in the justice’s docket stating the reasons for the justice’s decision upon the preliminary examination. It is with considerable reluctance that I concur in a reversal, however, as it seems to me that the defendant established the fact that the prosecution was instituted upon the advice of the state’s attorney of Foster county, after a full, fair, and honest statement of the facts, in a manner so conclusive that it is at least debatable whether there was any issue of fact to submit to the jury with respect to this defense. In any event the evidence on behalf of defendant on this feature of the case was so strong and convincing that it is difficult to see how any different result could ever be reached than that reached by the jury in this ease.
In view of the different defenses interposed, it seems to me that upon a retrial it would be desirable, if the trial court would direct the jury to make findings upon particular questions of fact. And this is especially true with respect to the questions involved in the defense of the advice of the counsel.