Comeford v. Morwood
| Decision Date | 10 June 1916 |
| Citation | 158 N.W. 258,34 N.D. 276 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Bottineau County, Cooley, Special Judge.
From a judgment and an order denying an alternative motion for judgment notwithstanding the verdict or for a new trial defendant appeals.
Affirmed.
Weeks & Moum, for appellant.
Each party to a civil action is entitled to three peremptory challenges. Comp. Laws 1913, § 7615; Silcox v Lang, 78 Cal. 120, 20 P. 297.
Such challenges are made without assigning any reason, and the right of such challenge, within the limited number, is absolute, and cannot be abridged or impaired by any arbitrary rule of court. 24 Cyc. 351, 367; Mutual L. Ins. Co. v Hillmon, 145 U.S. 285, 36 L.Ed. 706, 12 S.Ct. 909.
To make out a cause of malicious prosecution, malice and want of probable cause must concur. 26 Cyc. 23.
In criminal prosecutions, probable cause means reasonable grounds for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautions man in the belief that the accused is guilty of the offense charged. 26 Cyc. 24.
The burden of proving malice and want of probable cause is on the plaintiff. 26 Cyc. 86.
The mere fact that there was an acquittal, or dismissal of the criminal proceeding, is not evidence of want of probable cause. Decen. Dig. p. 1970, and cases cited; 26 Cyc. 40; Bekkeland v. Lyons, 96 Tex. 255, 64 L.R.A. 474, 72 S.W. 56; Lindsey v. Couch, 22 Okla. 4, 98 P. 973, 18 Ann. Cas. 60; Kansas & T. Coal Co. v. Galloway, 71 Ark. 351, 100 Am. St. Rep. 79, 74 S.W. 521; Thompson v Beacon Valley Rubber Co. 56 Conn. 493, 16 A. 554; Herbener v. Crossan, 4 Penn. (Del.) 38, 55 A. 223; McBean v. Ritchie, 18 Ill. 114; Hurd v. Shaw, 20 Ill. 354; Anderson v. Friend, 85 Ill. 135; Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505; Philpot v. Lucas, 101 Iowa 478, 70 N.W. 625; Stephens v. Gravit, 136 Ky. 479, 124 S.W. 414; Sundmaker v. Gaudet, 113 La. 887, 37 So. 865; Laing v. Mitten, 185 Mass. 233, 70 N.E. 128; Davis v. McMillan, 142 Mich. 391, 3 L.R.A.(N.S.) 928, 113 Am. St. Rep. 585, 105 N.W. 862, 7 Ann. Cas. 854; Shafer v. Hertzig, 92 Minn. 171, 99 N.W. 796; Boeger v. Langenberg, 97 Mo. 390, 10 Am. St. Rep. 322, 11 S.W. 223; Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149; Britton v. Granger, 7 Ohio C. D. 182; Eastman v. Monastes, 32 Ore. 291, 67 Am. St. Rep. 531, 51 P. 1095; Fox v. Smith, 26 R. I. 1, 57 A. 932, 3 Ann. Cas. 110; Catzen v. Belcher, 64 W.Va. 314, 31 Am. St. Rep. 903, 61 S.E. 930, 16 Ann. Cas. 715.
Probable cause may also be shown by implied admissions of the accused; waiver of examination by the accused has generally been regarded as such an admission, and prima facie evidence of probable cause. 26 Cyc. 38; Barber v. Scott, 92 Iowa 52, 60 N.W. 497; Vansickle v. Brown, 68 Mo. 627; Jones v. Wilmington & W. R. Co. 125 N.C. 227, 34 S.E. 398; Hess v. Oregon German Baking Co. 31 Ore. 503, 49 P. 803; Brady v. Stiltner, 40 W.Va. 289, 21 S.E. 729.
Where a statement of a matter of fact is made in the presence or hearing of a party, so that he understands it, regarding a fact affecting him or his rights, and is of such a serious nature as to call for a reply, and the party is possessed of knowledge concerning the matter mentioned, his failure to make reply is admissible in evidence as tending to show an admission of the truth of the statement. 16 Cyc. 956; Murphey v. Gates, 81 Wis. 370, 51 N.W. 573; O. S. Paulson Mercantile Co. v. Seaver, 8 N.D. 215, 77 N.W. 1001; 1 Enc. Ev. 367.
Primarily, that which constitutes probable cause is a question of judicial opinion. What facts, and whether all or sufficient undisputed facts, constitute probable cause, is to be determined by the court. 26 Cyc. 106.
Cowan & Adamson and H. S. Blood, for respondent.
Plaintiff recovered a verdict against defendant for $ 500 in an action for malicious prosecution of a criminal action. The principal facts out of which this litigation grew are as follows: The plaintiff, Comeford, was indebted to the defendant, Morwood, on an unsecured promissory note for $ 41, and an open book account for $ 159.60. In settlement of this indebtedness the plaintiff, on November 16, 1912, executed and delivered to the defendant, Morwood, a promissory note for $ 200.60, payable December 16, 1912, and secured the payment of said promissory note by chattel mortgage on two horses, a set of harnesses, and the 1912 crops on certain lands in Bottineau county. Upon the execution and delivery of such note and chattel mortgage, Morwood delivered the unsecured promissory note for $ 41 to Comeford.
A few days after this transaction, Comeford went to Minot, North Dakota, and the defendant, Morwood, claims that upon investigation he learned that Comeford did not have any grain at the time the mortgage was given, and that the horses were of small value; that he thereupon consulted with his attorney, one Soule, who maintained an office at Westhope, where defendant also resided, and was advised by his said attorney to have Comeford arrested for obtaining property by false pretenses. Thereafter, on November 15th, 1912, the defendant, Morwood, made a complaint before a justice of the peace charging Comeford with the crime of obtaining property by false pretenses; a warrant was issued upon said complaint, and Comeford was arrested at Minot on December 10, 1912, and soon thereafter brought before the magistrate at Westhope, whereupon he waived a preliminary examination and was held to the district court. On December 16th, 1912, an information was filed in the district court charging defendant with the crime of obtaining property by false pretenses. Upon being arraigned, Comeford entered a plea of not guilty. When the case came on for trial, the trial court in its rulings on the admission of evidence held that the chattel mortgage did not constitute a valid mortgage on grain in the bin, and following such ruling the criminal action was dismissed on motion of the state's attorney. Plaintiff thereafter brought this action to recover damages for malicious prosecution.
Only two errors are assigned and argued on this appeal. The first assignment of error is based upon the alleged refusal of the trial court to allow defendant's challenge to a juror. The following constitutes the entire record of the proceedings upon which this assignment of error is based:
Mr. Blood (plaintiff's attorney): We will challenge Mr. Smithson for cause, at this time, he being at the present time a magistrate.
The Court: The challenge is denied.
Mr. Blood: We will pass for cause.
Mr. Weeks (defendant's attorney): Pass for cause.
Mr. Weeks: Pass for cause, and pass peremptory.
Mr. Weeks: We have exercised a peremptory, call another juror.
Mr. Blood: Pass peremptory.
Mr. Weeks: We have exercised our second peremptory; call another one.
(At this time the jury was completed, and the court asked the clerk to call the names of those excused, which was done, and the following proceedings were had:)
Mr. Blood: The plaintiff at this time objects to the defendant's third peremptory challenge, Mr. John L. Edwards, for the reason that the defendant waived peremptory as to all of the jurors; that is, as to the first twelve men called, so that the defendant would have a right to peremptorily challenge only the jurors called after the waiver, and John L. Edwards is the third juror called.
Mr. Weeks: I believe counsel is right about that; Mr. Soule made the challenge, but I think he is too late at this time to make the objection.
Mr. Blood: If the court please, the counsel had no knowledge as to what juror was in fact challenged until he just now got the list from the clerk.
Mr. Weeks: I think the names were stricken off by Mr. Soule at the clerk's desk at each time.
The Court: Who was the man called in his place?
Mr. Blood: It was the last man called.
The Court: Mr. Bales, you mean?
Mr. Blood: Yes.
The Court: Well, to obviate any difficulty here, do you consent to the withdrawal of Mr. Bales, and the substitution of Mr. Edwards, the man who was stricken off?
Mr. Weeks: We are perfectly satisfied with the jury as it now stands. It was an oversight on our part, and it is unfair to take advantage of it at this time; it should have been objected to at that time.
Mr. Blood: If the court please, it was objected to as soon as we received knowledge as to what juror was in fact stricken off, and I think the challenge was made simply by noting it on the list the attorney had, and took it as a matter of course that it was the last juror that was called that was stricken off until I walked over to the clerk's desk and saw the third peremptory challenge was the third man called.
The Court: You ask now that Mr. Bales be withdrawn and that Mr. Edwards be placed on the panel?
Mr. Blood: Yes, sir.
The Court: All right, I will withdraw Mr. Bales, and Mr. Edwards may take his place in the jury box.
Mr Weeks: Exception. The record above set forth shows that defendant's counsel passed the juror Edwards both for cause and peremptorily. It also shows that he conceded that he had waived his right to peremptorily challenge this juror, and asserted that the challenge should be permitted to stand because plaintiff's objection to such challenge was not sufficiently timely. The record, however, discloses that the objection was made before the jury was sworn to try the case, and it also indicates that the objection was made as soon as plaintiff's counsel became aware of the fact that defendant's counsel...
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