Casebeer v. Rice

• Decision Date: 29 September 1885
• Citation: 24 N.W. 693,18 Neb. 203
• Parties: JOHN CASEBEER AND MARY DRAHOBLE, PLAINTIFFS IN ERROR, v. CHARLES P. RICE ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 693

18 Neb. 203

JOHN CASEBEER AND MARY DRAHOBLE, PLAINTIFFS IN ERROR, v. CHARLES P. RICE ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

September 29, 1885

ERROR to the district court for Gage county. Tried below before DAVIDSON, J.

AFFIRMED.

G. M O'Brien and J. E. Bush, for plaintiffs in error, on first point, cited: 2 Addison on Torts, 759. Bacon v Town, 43 Cushing, 217. Parker v. Farley, 107 Cushing, 482. Cardival v. Smith, 100 Mass. 159. Dreggs v. Burton, 44 Vermont, 124. On fourth instruction, cited: 2 Hilliard on Torts, 469, Chap. 16 § 246b. Harpham v. Whitney, 77 Ill. 32. Ewing v. Sandford, 19 Ala. 605.

L. M. Pemberton, and A. H. Babcock, for defendants in error, on fourth instruction, cited: 1 Hill. on Torts, 191. Cooley on Torts, 167. 2 Add. on Torts, 693. Desty Am. Cr. Law, § 130m. Scribner v. Beach, 4 Denio, 448. Parsons v. Brown, 15 Barb., 590. Cerey v. The People, 45 Id., 262. Merriam v. Mitchell, 13 Me. 439. Shaul v. Brown, 28 Iowa 37.

OPINION

REESE, J.

From the record and pleadings in the cause it appears that on or about the 29th of October, 1880, the defendants in error were arrested upon a criminal charge made against them before the county judge of Gage county. The crime charged by the complaint was that of an unlawful assembly or, perhaps, what is denominated "rout." The complaint was signed and sworn to by Mathias Drahoble, the husband of one of plaintiffs in error. Such proceedings were had as resulted in a dismissal of the cause and the discharge of the accused by reason of the failure of the prosecution to give security for costs. Defendants in error then brought suit in separate actions, alleging damages sustained by reason of the arrest, etc., and that the prosecution was malicious and without probable cause. Averments are made in the petitions charging both of plaintiffs in error with causing the arrest.

Plaintiffs in error filed separate answers, Mary Drahoble denying generally the allegations of the petitions, and John Casebeer admitting the prosecution, but denying any connection with it. By agreement the causes were tried together. The jury found for defendants in error, and returned verdicts assessing Rice's damages at $ 102, and M. Candace Casebeer's at $ 200. Defendants in that case prosecute error to this court.

The first contention is, that the dismissal of the criminal prosecution was not such a final determination thereof as would entitle defendants in error to recover. While there are some cases which seem to hold with plaintiffs in error upon that point, yet we deem it well settled by the great weight of authority that there was such a final termination of the prosecution as would enable defendants in error to maintain their action if the prosecution was found to be malicious and without probable cause. In Casebeer v. Drahoble, 13 Neb. 465, 14 N.W. 397, it was held that the right of action accrues "whenever the particular prosecution be disposed of in such a manner that this (it) cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one."

It is next insisted that neither of the plaintiffs in error had anything to do with the criminal prosecution and are therefore in no way responsible for the same, nor in any sense liable in this action, even if the prosecution was malicious and without probable cause. Upon this branch of the case there was a direct conflict of testimony. The rule is well settled in this court that in such cases the verdict will not be molested unless the preponderance of the testimony is so clearly against it as to satisfy the mind that it is clearly and manifestly wrong. Sycamore Marsh Harvester Co. v. Grundrad, 16 Neb. 529, 20 N.W. 832. Applying this rule to the case at bar, we are to inquire whether or not there was sufficient testimony upon this point to sustain the verdict.

Hon. J. E. Cobbey, the county judge before whom the criminal prosecution was conducted, was called as a witness on the part of defendants in error, and after the preliminary proof of signatures, etc., to certain files and records had been made, he is asked to state who filed the complaint with him. His answer was, "Why, Mrs. Drahoble filed it, I think--that is, handed it to me. It was not sworn to before me, but it was handed to me by Mrs. Drahoble, as I remember it." As there is evidently a want of agreement between counsel as to the effect of Judge Cobbey's testimony, we copy that part bearing upon this question, omitting all questions the objections to which were sustained:

Q. Was it handed to you by Mathias Drahoble?

A. It was not handed to me by a man.

Q. State whether it was handed you by a man or woman.

A. It was handed to me by a woman.

Q. You may state what John Casebeer and Mary Drahoble did about this prosecution which has been introduced in evidence.

A. I think it was in the morning; Mrs. Drahoble, or a woman who introduced herself as such, came in considerably agitated and flurried, and handed me a paper, saying she wanted that filed. I looked it over a little, and while I was looking it over and making the proper entries, she told me they were having a fearful time down there--and some got hurt--and had a fight--a big time, and went on as a woman will sometimes; said she left them to come up and see her attorney, and they decided to put a stop to it, and this was a step in putting a stop to it. She talked some time; I think she was in the office an hour, may be; I did not charge my mind with it, but she told me all about it-- everything that had happened, or she thought would happen. That is about all I had to do with her. My impression is she took the warrant down to her attorney; I am not certain; I did not charge my mind with it at the time.

Q. State what, if anything, John Casebeer had to do with it.

A. I don't remember anything about John Casebeer, I think--that is, I don't remember anything in particular; he was around there during the prosecution, but I don't have any particular remembrance of him.

Q. Do you remember him ordering out a subpoena in the case for the plaintiffs?

A. I would not be positive he ordered the subpoena; it might be; the record shows somewhere; I don't remember; I have very little remembrance about it; I have an idea he did it, but I would not be positive about it.

Q. State whether or not John Casebeer was there during the proceedings at any time?

A. John Casebeer was not there that morning, but I think he was there afterwards, twice, that is what I think; he was there twice, perhaps it might have been on the same day, and I think he talked to me once about there, and another time with Colby.

Q. State whether or not he was there on the 3d day November, the time the case was finally disposed of?

A. I cannot say as to that whether he was or not. If this record shows that he was there, he was.

CROSS-EXAMINATION.

Q. Can you describe the kind of a woman that appeared at your office with that paper?

A. I think she was a large woman; rather fleshy. I don't know that I could identify her.

Q. Are you certain it was a woman handed it to you?

A. Oh, yes; there is no doubt about that.

Q. What time of day?

A. I judge about nine o'clock in the morning.

Q. Might you not be mistaken, and might not this have been the day of the trial?

A. No, sir; I am quite certain. That is the only thing in which I might be mistaken, if there was another case on this docket, started in this Casebeer matter, it might be she appeared in that and not in this.

Q. Is there no possibility of being mistaken?

A. There is always a possibility.

Q. You are not certain she appeared?

A. I am quite positive of that. I am pretty positive it was this case.

Q. If she should testify here she was in Blue Springs that day, you would still be positive?

A. If she was in Blue Springs that day, of course I am mistaken, but I think I would want considerable evidence to convince me.

Q. Is it not a fact that the party who signed that complaint never took it out of your office after it was sworn to?

A. I think it was not sworn to before me.

Q. This was 9 o'clock in the morning of the day that entry was made?

A. That is my impression. The entry don't show, but that is my impression. It was in the morning. I would not be very positive about that.

Q. You say in your examination that John Casebeer was there at the time of this examination.

A. Why, I said he was there twice, I think. I think John talked to me about it once.

Q. Was there any other parties about the court room?

A. Oh, yes; there was a number there. There has been so much of that Casebeer business.

The theory of the defendants in error is, that plaintiffs in error caused their arrest so that during the time occupied by defendants in error in going from Blue Springs to Beatrice in charge of the officer making the arrest, plaintiffs in error could, and did, by force and violence remove defendants in error and certain personal property of Mrs. Casebeer from a house in Blue Springs (the title to the land on which it stood being held in common), and thereby by force and violence, with the aid of the arrest, accomplish what could not be brought about by peaceable methods. One W. E. Parker, a constable at Blue Springs, was called in for the purpose of protecting Mrs. Casebeer during the enforced absence of her husband, and he testified that while he was returning the personal property which had been forcibly removed from the house of defendant in error (Casebeer) he saw plaintiff in error, John Casebeer, there, who stated to the witness that the arrest was made on purpose so he could get a chance to get into that property--get possession of the property, and if he, the witness, didn't keep away, he would do the same thing...