19 S.D. 656 | S.D. | 1905
Lead Opinion
The sufficiency of the facts stated to constitute a cause of action for malicious prosecution is the only question presented by this appeal from an order overruling a demurrer to the complaint in which it is alleged, in substance, that on the 15th day of October, 1903, the defendant maliciously and without probable cause charged plaintiff in a sworn complaint before a justice of the peace with the crime of malicious mischief, on account of which he was arrested, and to obtain his release gave a bond in the penal sum of $300.
It appears from the uncontroverted statement in the brief of respondent that the only contention by counsel for appellant in the court below was that an action for malicious prosecution will not lie until the case upon which it is founded has been tried and finally determined on its merits by a jury in a court of competent jurisdiction, and in justice to the learned judge who presided at the trial it should be observed that his attention was apparently not directed
From the complaint under consideration it is not ascertainable that plaintiff was discharged by the magistrate, or that he secured his liberty at the preliminary examination otherwise than by giving bail for his appearance in the penal sum of $300, and it therefore does not affirmatively appear that the malicious prosecution had terminated in his favor before the commencement of this action. Consequently facts sufficient to constitute a cause of action are not stated in the complaint, and the order overruling the demurrer is reversed.
Dissenting Opinion
(dissenting). These facts are confessed by-the demurrer : (1) That on October 15, 1903, the defendant made a sworn complaint before a justice of the peace charging plaintiff with having committed the crime of malicious mischief and procured from the justice a warrant for his arrest; (2) that in so doing the defendant acted maliciously, and without probable cause; (3) that
But, giving the pleading the narrowest and most technical con- ■