201 P. 573 | Mont. | 1921
delivered the opimon of the court.
Action was brought to recover damages for alleged malicious prosecution. Verdict was rendered in favor of plaintiff, and judgment entered in accordance therewith. A motion for new trial was overruled. Defendant has appealed from the judgment and from the order overruling the motion.
Several assignments of error are made, but appellant has
Defendant urges that this allegation is insufficient for the reason that it is not alleged in haec verba that the order of
Defendant cites the following four cases heretofore decided by this court in support of his argument as to the proper interpretation of this statute: Harmon v. Comstock H. & C. Co., 9 Mont. 243, 23 Pac. 470; Weaver v. English, 11 Mont. 84, 27 Pac. 396; Walter v. Mitchell, 25 Mont. 385, 65 Pac. 6; State v. Lagoni, 30 Mont. 472, 76 Pac. 1045.
It is to be noted that in each of these cases the judgment pleaded was the basis of the right upon which the action was founded. In Harmon v. Comstock, supra, plaintiff’s right of action depended upon the validity of an attachment, and of course the validity of the attachment depended upon the jurisdiction of the court. In Weaver v. English, supra, defendant pleaded a judgment as res adjudícala; his right depended on the validity of the judgment. The plea was held insufficient because it failed to show the jurisdiction of the .Court rendering the judgment pleaded, nor was it alleged that the judgment was duly given or made. In Walter v. Mitchell, supra, the right of action was based upon the obligation of defendant, as contractor in charge of the Insane Asylum at Warm Springs, to receive an insane person upon order of a court; this obligation was dependent-upon the validity of the order of commitment. It was held that the pleading failed to establish the jurisdiction of the court or that the order of commitment was duly given or made. In State v. Lagoni, supra, the right of action depended upon the validity of a bail bond given upon the order of a justice of the peace to assure the appearance of defendant
Prior to the enactment of this statute it was necessary, in all cases where the right of action depended upon the validity of a judgment, to allege facts showing that the court rendering the judgment had jurisdiction so to do. The statute was evidently enacted to simplify the pleading of a judgment or order, and provide that such judgment or order may be stated to have been duly given or made as being sufficient to establish the jurisdiction of the court and validity of the judgment or determination. “Of course, stating that an order was ‘duly given or made’ is no more than the statement of a conclusion of law, but it is made sufficient by statute, and is for the purpose of obviating the necessity of pleading the jurisdictional facts as the common law requires.” (State v. Lagoni, supra.)
From the foregoing it is clear that in pleading a judgment or determination of the court upon which a right is founded, it is necessary that the jurisdiction of the court be set forth, or that it be alleged that the judgment or determination was duly given or made or that equivalent words be used. In this case we do not deem it necessary to decide whether or not the words used in the complaint are equivalent to the words set forth in the statute for the reason that in this case the right of action does not depend upon the jurisdiction of the court and the validity of the order dismissing the charges against defendant and releasing him from further prosecution. In a case of this kind the importance of pleading the action of the court in dismissing the charges and releasing the defendant rests in the fact that it must appear that the proceedings which were commenced against the
The other assignment of error relied upon is the refusal
We think this instruction was too broad. The effect of the instruction would have been to advise the jury that, if it found that plaintiff was actually guilty of any offense regardless of what it was and whether or not it related to the facts involved in the criminal charge preferred against plaintiff by defendant, and regardless of whether or not there was any judicial determination of the matter, then plaintiff’s discharge on the accusation of defendant would not show want of probable cause so as to sustain an action for malicious prosecution. Under the statute of this state, on preliminary examination before a justice of the peace,
For these reasons the judgment and order overruling the motion for new trial are affirmed.
Affirmed.