Bigelow v. Sickles

• Decision Date: 07 January 1890
• Parties: BIGELOW v. SICKLES ET AL.
• Court: Wisconsin Supreme Court

75 Wis. 427

44 N.W. 761

BIGELOW

v.SICKLES ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1890.

Appeal from circuit court, Jefferson county.

It appears from the record that July 5, 1888, the defendant Byron Z. Sickles made a complaint before H. T. AMES, a justice of the peace, residing in Deerfield, Dane county, Wis., charging the plaintiff with having committed adultery in the town of Deerfild, with one Tony Hoover, on or about September 1, 1886; that said justice thereupon issued a warrant, and caused the arrest of the plaintiff, who was brought before him, and, on examination, she was discharged from custody; that thereupon this action, for malicious prosecution of the plaintiff by the defendants, was commenced. The complaint charges, in the usual manner, the arrest mentioned, and that the same was caused by the defendants maliciously, and without probable cause. The defendant Zachariah, denied all connection with the arrest, and the defendant Byron Z. denied all malice, and alleged that the arrest was caused in good faith. Upon the trial of that action, the jury returned a verdict in favor of the plaintiff, and against both of the defendants, for the sum of $1,500. Thereupon the defendants moved the court, upon the judge's minutes, and the affidavits of George M. Haas, John Z. Sickles, George Grimm, R. B. Curtland, and the two defendants, and the papers, pleadings, and proceedings in the action, to set aside the verdict, and grant a new trial, upon several grounds therein named. Upon the hearing of said motion, it was ordered by the court that the motion to set aside the verdict and grant a new trial be, and the same was thereby, granted, upon the grounds of newly-discovered evidence, upon the payment of costs of the term, within 10 days after the same should be taxed, and that said motion, upon all other grounds, be, and the same was thereby, overruled. The plaintiff appeals from so much of said order as sets aside said verdict and grants a new trial. The affidavit of Haas tended to show that, in the summer of 1886, the plaintiff committed adultery with one George Giddins, at Lake Mills, Jefferson county, Wis. The affidavit of John Z. Sickles was to the effect that he was married to the plaintiff, September 1, 1879, and was divorced from her in 1887 or 1888, and further tended to show that, in the summer of 1886, he and his wife were at the house of said Haas; that she refused to go home with him, and remained there over night; that during the summer of 1886, and during the threshing season, he heard his wife with one Tony Hoover, in a closely-covered stage-wagon, standing in an alley adjacent to the residence of Mrs. George Robbins, in the village of Cambridge, Dane county, about the hours of 10 or 11 o'clock at night. The affidavits of the defendants were to the effect that, since the commencement of this action, they had been diligent and active in investigating the facts connected with, and which would be proper in, their defense; that they used all due diligence to properly defend the action; and that they never...