10 S.D. 394 | S.D. | 1898
This action for damages arising from the malicious prosecution of a civil action aided by attachment resulted in a judgment for plaintiffs, from which, and an order overruling a motion for a new trial, the defendant appeals.
It is admitted and stipulated: “That plaintiffs, as co-partners, resided and were engaged in business in Sioux Falls, in this state; that defendant is a corporation existing under the laws of New Jersey; that defendant commenced an action in 'the district court of the state of Minnesota within and for Ramsey county, and attached certain property in that state, belonging to plaintiffs; that when such action was heard judgment was entered therein in favor of plaintiffs; that at various times between the 21st day of October, 1892, and the 9th day of June, 1893, the above-named defendant, at the special instance and request of said plaintiff firm, sold and delivered unto said plaintiffs certain goods, wares, and merchandise, to-wit, tobacco and cigarettes, which were then and there of the value and reasonably worth the sum of two hundred and seven dollars and seventy cents, and for which said plaintiffs then and
The testimony, so far as essential to a determination of the questions of law presented will be noticed in the opinion. At the close of all the evidence, defendant moved the court to direct a verdict in its favor, for the reason that the same did not entitle plaintiffs to recover, in this: that the plaintiffs have not shown that the action commenced in Minnesota was commenced with malice, and without probable cause; which motion was denied, and defendant duly excepted.
The court gave the following instruction, to which the defendant duly excepted: ‘ ‘The facts in the case are not disputed. They are admitted and introduced in evidence here upon a written stipulation of facts between the parties. So it becomes the duty of the court to declare to the jury whether or not there was a reasonable cause; whether or not, under the facts in this case existing at the time that attachment was brought, the American Tobacco Company had any reasonable grounds to believe that Wuest Brothers were indebted to them. It is a matter of law that the court is bound to declare to the jury; that the court instructs the jury that these facts laid down in evidence here, chiefly in this written stipulation, do not show the presence of any probable cause whatever. On the contrary, they show, as a matter of law, on these facts the American Tobacco Company had no claim whatever against Wuest Brothers; no ground, in law or in fact, on which to bring