127 Cal. 61, Sac. 548, Carpenter v. Nutter

Docket Nº:Sac. 548
Citation:127 Cal. 61, 59 P. 301
Opinion Judge:COOPER, Judge
Party Name:A. H. CARPENTER, Appellant, v. W. B. NUTTER et al., Respondents
Attorney:Carpenter & Flack, for Appellant. A. H. Ashley, Nicol & Orr, and W. M. Gibson, for Respondents.
Judge Panel:JUDGES: Cooper, C. Haynes, C., and Chipman, C., concurred. Harrison, J., Van Dyke, J., Garoutte, J.
Case Date:November 27, 1899
Court:Supreme Court of California
 
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127 Cal. 61

59 P. 301

A. H. CARPENTER, Appellant,

v.

W. B. NUTTER et al., Respondents

Sac. No. 548

Supreme Court of California

November 27, 1899

Department One

Hearing in Bank denied.

APPEAL from a judgment of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.

COUNSEL:

Carpenter & Flack, for Appellant.

A. H. Ashley, Nicol & Orr, and W. M. Gibson, for Respondents.

JUDGES: Cooper, C. Haynes, C., and Chipman, C., concurred. Harrison, J., Van Dyke, J., Garoutte, J.

OPINION

COOPER, Judge

Action to recover damages for malicious prosecution. A demurrer was interposed to the complaint in the court below and sustained. Judgment was thereupon entered in favor of defendants. This appeal is from the judgment upon the judgment-roll and for the purpose of reviewing the order of the court sustaining the demurrer. The complaint alleges in substance that at all times therein mentioned defendant Nutter was district attorney of San Joaquin county, and that defendant Parker was justice of the peace of Stockton township in said

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county. That defendants Langford and De Vries were sureties on the official bond of defendant Nutter as such district attorney. That about the eighteenth day of January, 1898, the defendants Nutter, Weinberg, Parker, and Sapiro entered into a conspiracy to falsely and maliciously charge the plaintiff with the crime of grand larceny, and, in pursuance of such conspiracy, the said defendants last herein named, filed two written complaints in the justice's court of said defendant Parker and with said Parker as justice of the peace. That upon said complaints warrants of arrest were issued and plaintiff was arrested and taken in custody and compelled to give bail to secure his release. That after an examination of witnesses, and upon the advice and at the request of defendant Nutter as district attorney, the defendant Parker, as justice of the peace, held the plaintiff to answer and appear before the superior court of said county upon two charges of grand larceny. That afterward, on the twenty-first day of February, 1896, the defendant Nutter, as district attorney, filed two informations in the superior court of said county charging plaintiff with the crime of grand larceny in each case, said informations being based upon the commitments and orders made by said Parker as justice. That...

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