Acton v. Coffman

• Decision Date: 08 March 1888
• Parties: ACTON v. COFFMAN.
• Court: Iowa Supreme Court

74 Iowa 17

36 N.W. 774

ACTON

v.COFFMAN.

Supreme Court of Iowa.

March 8, 1888.

Appeal from district court, Pottawattamie county; GEORGE CARSON, Judge.

This is an action brought by Fannie Acton, plaintiff, against A. W. Coffman, defendant, to recover damages for a malicious prosecution. Trial by jury, verdict and judgment for plaintiff, and defendant appeals.E. A. Babcock and Lyman & Hunter, for appellant.

Fremont Benjamin and A. W. Askwith, for appellee.

SEEVERS, C. J.

It is stated in an abstract, filed by the appellee, that no bill of exceptions was ever signed and filed. As this is not in any manner controverted, it must be deemed to be true. It follows, therefore, that in relation to the introduction or rejection of evidence, the errors assigned cannot be considered, for the reason that there is no competent evidence before us that the rulings were made. Certain instructions were asked and refused, and such rulings are said to be erroneous, but we are unable to say this is so, for the reason the evidence has not been properly preserved by a bill of exceptions, and therefore we are unable to say such instructions are applicable to, or justified by, the evidence.

2. Because of the state of the record, there is but one error assigned that can be considered, and that is that, under the special verdict, judgment should have been rendered for the defendant, notwithstanding the general verdict. The court instructed the jury as follows: “(7) If you find from the evidence that, before the defendant commenced any criminal proceedings against the plaintiff, if he did commence any, he laid all the facts in the matter before E. A. Babcock, Esq.; that said Babcock is an attorney at law; that he acted in good faith upon the opinion given by said Babcock; that he believed himself that there was cause for the prosecution,--then he is not liable in this action and your verdict must be for the defendant.” The following special interrogatories were submitted to the jury: “(4) Did the defendant, Coffman, seek the advice of an attorney before he instituted the criminal proceedings complained of by plaintiff? (5) Did that attorney, with a full knowledge of the facts in the case, advise said Coffman that in his opinion a criminal suit was maintainable against this plaintiff? (6) Did defendant act on such advice in commencing the criminal proceedings in controversy herein?” To each of these interrogatories, an affirmative answer was given by the jury, and...