2 Ind. App. 519 | Ind. Ct. App. | 1891
This suit was commenced by John Houck against William A. Swindell to recover damages for the alleged malicious prosecution of a civil action by the latter against the former.
It is further alleged that plaintiff was arrested upon such writ, and taken before said justice, and the cause was continued to the 23d day of February, 1889, when the trial was entered upon; and after some evidence had been heard the defendant dismissed his said action, and the plaintiff was discharged from custody, and that in consequence of such proceedings the plaintiff was put to great expense, his business was interrupted, and he was humiliated and disgraced, all to his damage to the amount of one thousand dollars.
A demurrer was filed to the complaint and overruled, and the cause was put at issue by an answer of the general denial.
The trial resulted in a verdict for the plaintiff, and the defendant moved for a new trial, which was denied, and judgment rendered upon the verdict.
These cases unquestionably declare the correct rule, and are entitled to our continued adherence.
The next assignment of error relates to the decision of the trial court upon the motion for a new trial, and involves mainly the rejection of alleged competent and material evidence.
It was shown by the evidence that appellant had had some business transactions with the appellee relative to cutting and sawing logs in Madison county, and he claimed that the appellee owed him the sum of $199.18, growing out of such transactions.
A short time prior to the commencement of the action before the justice the appellant was informed that appellee would soon be in Madison county, to collect a sum of money due him from one Marley, and he instituted the suit, and filed the affidavit, for the capias; on the day appellee came into said county. The trial of that case was postponed until sometime in February, 1889, and at the trial appellant conceived it to be necessary to prove the facts set out in his affidavit for capias, and for the purpose of proving the fact that the appellee, when the writ issued for his arrest, had a considerable sum of money on his person, asked him upon the trial if he had not received, and if he did not have, such money. Appellee had been duly sworn as a witness, and his counsel objected to the
Upon the trial of the case at bar the appellee was permitted to testify that he was not indebted to the appellant when the justice suit was instituted. He admitted that he had the sum of $129 on his person when he was arrested, but said he intended to pay his taxes with the money, and denied any purpose or intention of cheating or delaying his creditors. Appellant was allowed to testify that the appellee did owe him about $200 at the time the justice proceeding was commenced, and that he was informed that appellee was to receive a large sum of money on that day, and that he commenced such proceedings without malice, and for the purpose of collecting what he thought was honestly due him.
In answer to a proper question, appellant offered to testify that he dismissed the suit before the justice because he was unable to prove that the appellee had means with which he might have paid the debt on the day the writ was issued, because of the absence of Marley, who would have testified to such fact, but who was out of the county, and he chose to dismiss the case rather than continue it. This evidence was excluded. Marley testified upon the trial below that he paid appellee the sum of $400 on the day he was arrested, and this was not denied.
Appellant offered to prove, also, by two competent witnesses, in answer to proper questions, that they were present at and assisted in making a settlement between the parties “ a few weeks or months” before the justice suit was begun, in which settlement it was found and agreed that the appellee was indebted to the appellant in the sum of $198.18, but the evidence was excluded.
The only evidence of malice and want of probable cause, aside from the commencement and voluntary dismissal of the justice suit, was, that appellee denied being indebted to appellant, or that he was about to leave Madison county, taking with him property or means with intent to delay his creditors, and the further facts that he was solvent, and was engaged in business in the city of Indianapolis.
In cases for malicious prosecution the burden is with the plaintiff, and to authorize a recovery it is necessary for him to prove the commencement of the proceedings complained of through malice and without probable cause, and that such proceedings terminated in his favor.
Malice may be inferred from the absence of probable cause, but the latter can never be inferred from the former. It is scarcely necessary to say that one is not liable for damages for every unsuccessful prosecution of a criminal or civil proceeding. If it were otherwise, honest citizens would be deterred from attempting to maintain the laws, and worthy suitors would be prevented from seeking relief in the courts for what they reasonably and honestly might consider just demands.
Where one with no improper motive, but actuated by the honest and reasonable conviction of the justice of his claim, brings suit against another and fails, he is not answerable for damages above the taxable costs. v
■In the case in hand the voluntary dismissal of the proceedings before the justice was an important circumstance, tending to prove want of probable cause, and indirectly to establish the existence of malice. These were vital questions in the case, and we know of no reason why the appellant ought not to have been permitted to give his explanation of this damaging circumstance.
While the facts contained in the affidavit for a capias ad respondendum are not issuable or traversable before the jus
We are of the opinion, also, that the court erred in excluding the testimony of the witnesses upon the question of the settlement.
While one may be liable for suing out a writ of capias ad respondendum maliciously and without probable cause, even where the defendant is indebted to him, yet in this case the existence of the debt was in controversy, and to some extent at least furnished the basis upon which the appellant sought to justify his conduct.
The' fact of the existence of the debt was not a collateral question, but one directly involved in the issues, and upon which the parties had the right to call other witnesses. Burt v. Place, 4 Wend. 591; Besson v. Southard, 10 N. Y. 236 ; 2 Greenleaf Ev., section 457.
The court erred in refusing a new trial, for which error the judgment is reversed, at appellee’s costs.