Boeger v. Langenberg

• Decision Date: 04 March 1889
• Parties: BOEGER v. LANGENBERG et al.
• Court: Missouri Supreme Court

11 S.W. 223

97 Mo. 390

BOEGER v. LANGENBERG et al.

Supreme Court of Missouri.

March 4, 1889.

FALSE IMPRISONMENT — MALICIOUS PROSECUTION — PROBABLE CAUSE.

1. Evidence that plaintiff was restrained of his liberty at defendant's instance, under a search-warrant, with a clause of arrest, which the justice had no authority to issue, based on an insufficient affidavit made by defendant, who also filled out the warrant signed by the justice, is sufficient to sustain a count for false imprisonment. Neither malice nor want of probable cause need be proved.

2. A dismissal by the prosecuting attorney of an illegal warrant of arrest does not raise, in a suit for malicious prosecution, any inference of want of probable cause on the part of complainants in obtaining it.

3. An acquittal by a jury on a trial of an information brought by the prosecuting attorney, at defendant's instance, against plaintiff, does not tend to establish want of probable cause in moving the prosecution.¹

Appeal from circuit court, Gasconade county; A. J. SEAY, Judge.

Action by Simon Boeger against F. W. Langenberg and H. W. Stoenner for malicious prosecution and false imprisonment. There was a verdict and judgment for defendants, and plaintiff appeals.

Louis Hoffman, for appellant. L. F. Parker, for respondent.

BARCLAY, J.

The petition in this case states three causes of action. The first is for malicious prosecution, and the second for false imprisonment, both relating to the issue of the same search-warrant, with a clause of arrest. The third is for malicious prosecution of an information against the present plaintiff for receiving stolen goods. The answer was a general denial. It appeared at the trial that defendants in July, 1885, came before a justice of the peace in Gasconade county, and complained that plaintiff had bought some oak shingles or boards of one Jarvis, who had been making them from timber of defendants; that the boards belonged to them, and were on plaintiff's premises, etc. After some conference, the defendants prepared an affidavit and search-warrant by filling up blanks furnished by the justice. They both subscribed the affidavit. The justice then signed the warrant. The affidavit alleged that on or about the 22d day of July, 1885, Simon Boeger, or some person unknown, had received, taken, and carried away from the premises of Langenberg and Stoenner, in Boulware township and county of Gasconade, the following goods and chattels, the property of Langenberg and Stoenner; that is to say, one lot of oak shingles, between five and six hundred, made by Sam Jarvis out of timber belonging to Langenberg and Stoenner, for the erection of a dwelling-house on the premises of Langenberg and Stoenner; and that they have reasonable grounds to suspect, and do suspect, that they are concealed on or about the premises of Simon Boeger, of the township and county aforesaid. The search-warrant, after other recitals, commanded the officer to search the plaintiff's premises for the property, and, if found, to bring the same, and also the plaintiff, before some justice of the peace of the county, to be dealt with according to law. The warrant was returned executed by searching the premises of plaintiff and finding there the shingles, and by bringing the body of plaintiff into court. The justice's docket showed that a few days later plaintiff was discharged from arrest, at request of the prosecuting attorney of the county, at the cost of prosecuting witnesses. The plaintiff also offered evidence tending to show that the information on which the third cause of action was predicated was filed by the prosecuting attorney, that defendants instigated it, and that upon a trial plaintiff was acquitted by a jury. The evidence need not be set forth in detail. The material parts not already mentioned will be noted in the progress of this opinion. At the close of plaintiff's case the court instructed that plaintiff could not recover on any of his causes of action. Accordingly, the jury returned a finding for defendants on each of them. After a denial of his motion for a new trial, plaintiff appealed.

1. An action will lie for causing the issuance of a search-warrant maliciously, and without probable cause. To sustain it, the plaintiff must establish, among other things, want of probable cause on the part of defendant with reference to the action actually taken by the latter in the matter complained of. But a person making complaint to a magistrate is not necessarily answerable for whatever judicial action the magistrate of his own motion may take in the premises. If the magistrate misconceives the...