Bell v. Keepers

• Decision Date: 09 July 1887
• Citation: 37 Kan. 64,14 P. 542
• Parties: S. B. BELL v. JOHN KEEPERS
• Court: Kansas Supreme Court

14 P. 542

37 Kan. 64

S. B. BELL v. JOHN KEEPERS

Supreme Court of Kansas

July 9, 1887

Error from Wyandotte District Court.

ACTION by Keepers against Bell, to recover $ 2,000 as damages for malicious prosecution. The transactions out of which the prosecution arose are substantially as follows: Bell sold Keepers a tract of land, and a barn which the latter was to move upon the land and occupy and maintain as a canning factory, and was to pay as the purchase-price therefor $ 40 per month until the premises were paid for. Keepers made default in the payments, and desired to remove from the property. The contract provided that upon a failure to make payments the contract might be terminated, and Keepers was to forfeit all payments made as liquidated damages. The contract was terminated, and Keepers moved from the premises all the machinery and fixtures placed thereon by him, and also partitions and sheds attached to and made a part of the barn. While this removal was going on, Bell filed a complaint, and procured his arrest, and afterward failed to appear and prosecute the action. Keepers was discharged, and costs were taxed to Bell. The present action was tried by a jury, on August 28, 1885; verdict in favor of Keepers for $ 500. New trial denied, and judgment on the verdict for plaintiff. To reverse this judgment, Bell brings the case here.

Judgment reversed.

Nathan Cree, for plaintiff in error.

J. A Hale, and J. O. Fife, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The prosecution of which the defendant in error complains was commenced by plaintiff in error, S. B. Bell, upon the following complaint:

"STATE OF KANSAS, COUNTY OF WYANDOTTE, SS.: Simeon B. Bell, of lawful age, being first duly sworn, says that at the county of Wyandotte and state of Kansas, and on or about the 24th day of March, 1885, one Keepers did unlawfully and willfully enter into and destroy personal property and trespass upon the premises of the affiant, contrary to statute in such case made and provided.

S B. BELL."

A warrant was issued substantially following the complaint. It is now claimed that this complaint does not state a criminal offense, and for this reason plaintiff insists that no action for malicious prosecution can be maintained for the arrest made thereunder. This is no longer an unsettled question in this state. This court has repeatedly held that it cannot protect a complainant who, after procuring a warrant to issue on his complaint, to say in answer to a charge of malicious prosecution, that the complaint charges no crime. A void process procured through malice, and without probable cause, is even more reprehensible, if possible, than if it charges a criminal offense. The wrong is not in the charge alone, but more in the object and purposes to be gained, and the intention and motive in procuring the complaint and arrest. The contents of the complaint, when maliciously made and without good cause, are of but little consequence, and can give no protection. (Parli v. Reed, 30 Kan. 534, 2 P. 635; Shaul v. Brown, 28 Iowa 37; Bauer v. Clay, 8 Kan. 580.)

The record presents a more serious question than that urged against the complaint. At the trial, the written contract of the sale of the property in dispute was introduced in evidence. To this contract we must look to determine the rights of the respective parties, and from their interests and rights thereunder, as they were then placed, must be gathered something of the intention, objects and inducements that led to the procuring of the complaint and arrest. It is not the act alone that we are to judge, but the intentions and motives that prompted the act. This contract was admitted in evidence for this purpose; and as this contract fixed their interests in and relations to the property in dispute, then what those interests and relations were was a question of law to be determined by the court, and not a fact to be determined and found by a jury.

The court, upon this contract, gave the following instruction to the jury:

"20. The written contract offered in evidence tends to show, and...