Strehlow v. Pettit

• Decision Date: 30 April 1897
• Parties: STREHLOW v. PETTIT ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 22

71 N.W. 102

STREHLOW

v.PETTIT ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by Laura Strehlow against Henry P. Pettit and another for malicious prosecution. Judgment for plaintiff, and defendants appeal. Reversed.

It appears from the record that April 5, 1894, the defendant Pettit, being duly sworn and examined on oath before H. A. Porter, a justice of the peace, made complaint to the effect: That the plaintiff, Laura Strehlow, did, at Ft. Atkinson, Jefferson county, March 26, 1894, unlawfully and feloniously embezzle and convert to her own use 7 1/4 yards of dress lace of the value of $2.26, the goods and property of the firm of Pettit & Hoffman, of Ft. Atkinson, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Wisconsin; and prayed that the said Laura Strehlow be arrested, and dealt with according to law. That such written complaint was subscribed by said Pettit, who was sworn and examined before said justice. That thereupon said justice issued his warrant to the sheriff or any constable of said county, reciting the substance of said complaint, and commanding him forthwith to apprehend the said Laura Strehlow, and bring her before him to be dealt with according to law. There is evidence tending to prove that the plaintiff was at the time in question about 17 years of age; that her parents had both been dead for several years; that she was at the time living with her sister and brother-in-law, John May; that the criminal warrant so issued was thereupon delivered to the city marshal, Flint, by such justice; that Flint thereupon went with the warrant to the home of Laura Strehlow for the purpose of executing it, but, not finding her, he went to the factory where her brother-in-law was employed, and informed him, in substance, that he had a warrant for Laura, and asked him to tell her about it, and that she should go to Porter's office at 1 o'clock that day; that the brother-in-law, May, told Laura at noon that Flint had a warrant for her, and that she was arrested, and that she was to appear before Justice Porter at 1 o'clock; that she went to Porter's office at 1 o'clock; that the plaintiff, Flint, May, Pettit, and the justice, Porter, were all that were at Porter's office at that time; that Porter had a paper in his hand (the bill of lace; at least it was the amount of $2.26); that he asked the plaintiff if she was willing to settle; that she told him she would not settle; that she would not pay any bill that she had not got; that Porter said he would like to have it settled,--to make some settlement; that Pettit said he was willing to settle; if she would pay him $7, he would call it settled; that that would pay for the costs; that she told him she would not settle; that May asked for time to write to her guardian; that Porter said he would postpone the case for about 10 days, and fixed the date for April 19th; that he said they should appear there at 1 o'clock on that day; that on that day she appeared there, with her guardian and attorney; that no one else was there but the justice; that her attorney asked the justice if there was anything on the docket, and he said there was not; that he asked for the warrant and complaint; that her attorney copied the complaint; that there was nothing done with her that day under the warrant. The justice testified to the effect that the defendant Pettit came to him with the complaint against Laura; that he signed and swore to it; that he gave no directions about it; that he, as such justice, issued the warrant, and gave it to the city marshal, Flint; that he never returned the warrant, and that nothing further was done in his court about it; that January 7, 1895, the plaintiff, by her guardian, commenced this action for malicious prosecution; that the complaint alleged, in effect, the facts stated; that the defendants' answer admits the making of the complaint, but alleges that it was made in good faith, and without malice; that there was good and probable cause for making the same, and that it was so made on the advice of counsel; that the defendants gave no instructions or directions as to what proceedings should be had thereon; that no arrest of the plaintiff was ever made, or proceedings had in the matter, except that a warrant was issued and delivered by the justice to the marshal. And the answer further contained a general denial of everything not therein admitted. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed her damages at $450. From the judgment entered thereon in favor of the plaintiff the defendants bring this appeal.L. B. Caswell and W. H. Rogers, for appellants.

Harlow Pease, for respondent.

CASSODAY, C. J. (after stating the facts).

We perceive no error in admitting in evidence the letter written three or four days before the issuance of the warrant to the plaintiff by the cashier of the bank, in behalf of the defendants, requesting her to call at the bank, or the store of the defendants, and pay an account of $2.26 at once, “and save the trouble of taking other steps to collect it.” There is sufficient evidence tending to prove that the letter was written by the authority of the defendants. The admission of evidence as to the age of the plaintiff, and that her parents were both dead, appears to have been without objection. There was no error in admitting the testimony of the plaintiff's brother-in-law, to the effect that he told her that Flint had a warrant for her, and that she must appear before the justice, as mentioned in the foregoing statement. It was a circumstance in connection with the other evidence tending to prove that she was arrested. In overruling the objection the court said, in effect, that if the officer told May “to tell Laura she must appear at the office, and he did tell her, and she appeared at the office, it is submitting to the jurisdiction of the court.” We find no error in this ruling. Counsel for the defendants concede that the proofs tend to show that April 5 or 6, 1894, the plaintiff employed the attorney mentioned, “and with him called at the justice's office, as requested by Flint, and that the plaintiff, by her counsel, thereupon requested that nothing further be done for ten days,” in order that matters might be arranged with the parties. The substance of the complaint and warrant in the criminal proceeding is given in the foregoing statement. They may be insufficient to charge the offense of embezzlementprescribed by the statute. Sanb. & B. Ann. St. §§ 4418, 4667; White v. State, 20 Wis. 233. Whether they were void...