Adams v. Bicknell

• Citation: 126 Ind. 210,25 N.E. 804
• Parties: Adams v. Bicknell.
• Decision Date: 26 November 1890
• Court: Supreme Court of Indiana

126 Ind. 210

25 N.E. 804

Adams

v.Bicknell.

Supreme Court of Indiana.

Nov. 26, 1890.

Appeal from circuit court, Sullivan county; George W. Buff, Judge.

John C. Chaney and Walter S. Maple, for appellant. Wm. C. Hultz and O. B. Harris, for appellee.

Olds, C. J.

This is an action for a malicious prosecution. The complaint alleges that, in March, 1887, the appellee instituted before a justice of the peace a prosecution against the appellant, charging the appellant with having obstructed a public highway in Sullivan county, Ind. It appears from the averments of the complaint that the appellant was convicted before the justice of the peace, and he took an appeal to the circuit court, and was acquitted of the charge. The complaint contains proper averments that the prosecution was malicious, and without probable cause; but there are no averments that the conviction before the justice was procured by perjury or subornation of perjury on the part of the appellee, or by fraud or collusion or any improper motives on the part of the justice. A demurrer was sustained to the complaint, exceptions reserved to the ruling, and the ruling of the circuit court, in sustaining of the demurrer, is assigned as error. The sole question presented is as to whether the complaint is rendered defective on account of it showing that there was a conviction of the appellant before the justice of the peace. It is contended by counsel for appellee that the fact that the appellant was convicted by the justice, in the absence of averments that such conviction was procured by perjury or subornation of perjury on the part of the appellee, or showing that it was procured by fraud or collusion on his part, rebuts the other averments of malice and want of probable cause, and is conclusive evidence of probable cause, and exonerates the appellee from liability. On the other hand, it is contended by counsel for appellant that the appeal operated to vacate the judgment before the justice, and the cause came up in the circuit court for a trial de novo; that it is the same as if a new trial had been granted by the justice, and hence is not conclusive evidence that probable cause existed for instituting the prosecution. The decisions of the courts are not uniform upon the question presented, but we think the great weight of authority is to the effect that the judgment of the justice's court, though appealed from, and an acquittal had in the circuit court, is, in the absence of fraud, conclusive of probable cause. Cooley, Torts, (2d Ed.) p. 185, states the law to be: “If the defendant is convicted on the first instance, and appeals, and is acquitted in the appellate court, the conviction below is conclusive of probable cause.” Stephen, in his work on the law relating to Actions for Malicious Prosecutions, says: “It seems probable that the reversal on appeal of a conviction is not a termination favorable to the person convicted, upon which he can found an action for malicious prosecution.” Reynolds v. Kennedy, 1 Wils. 232, (1748,) which has frequently been quoted as an authority, was an appeal from the court of king's bench, in Ireland. The declaration was for seizing the plaintiff's brandy, and falsely and maliciously exhibiting an information against him before the subcommissioners of excise for not having paid duty upon it. It alleged that the subcommissioners condemned the brandy, and that the commissioners of appeal “most justly reversed the judgment of the subcommissioners.” It was held that, as to the information before the subcommissioners, the declaration showed a foundation for the prosecution, and that, as to the appeal, “we cannot infer, from the judgment of reversal of the commissioners of appeal, that the defendant, the prosecutor, was guilty of any malice.” In Griffis v. Sellars, 2 Dev. & B. 492, a well-reasoned case, it is held that, where there was a trial and conviction in the county court, and an appeal taken to the superior court, where the defendant was acquitted, it was conclusive of probable cause, and that a defendant in such case could not maintain an action for malicious prosecution; and the declaration was held bad for this reason. In the case of Clements v. Apparatus Co., 10 Atl. Rep. 442, the supreme court of Maryland, in a case for malicious prosecution, in a case where there had been a judgment in favor of the defendant in the case upon which the prosecution was based, which judgment had been reversed, said: “It was the deliberate judgment of a court of competent jurisdiction that there was not only a probable cause for filing the bill for injunction, but that the appellee was entitled to the relief prayed. A judgment thus rendered ought to be...