Curnow v. Kessler

• Decision Date: 30 June 1896
• Citation: 67 N.W. 982,110 Mich. 10
• Court: Michigan Supreme Court
• Parties: CURNOW v. KESSLER.

67 N.W. 982

110 Mich. 10

CURNOW v. KESSLER.

Supreme Court of Michigan

June 30, 1896

Error to circuit court, Houghton county; Jay A. Hubbell, Judge.

Action by John Curnow against Frank Kessler for malicious arrest and prosecution. There was a judgment for defendant, and plaintiff brings error. Affirmed.

J. F. Hambitz, for appellant.

Dunstan & Hanchette, for appellee.

MONTGOMERY J.

The defendant is a justice of the peace, and, while acting in that capacity, issued a warrant for the apprehension of plaintiff on the complaint of one Alfred Leclere. Plaintiff was arrested, brought before defendant, the cause adjourned and a trial had before a jury. Plaintiff was convicted sentenced to pay a fine of $16, including costs, which he paid, and was discharged. The declaration sets forth all these facts, and also avers that the complaint was not sufficient to confer jurisdiction upon the justice, and also that defendant acted maliciously in what he did, and with a view to assisting the complaining witness to collect a civil demand of the plaintiff. The material portion of the complaint is as follows: "The complaint of Alfred Leclere of So. Lake Linden, taken and made before me, Frank W. Kessler, a justice of the peace of Torch Lake Township, in said county of Houghton, upon the 6th day of May, A. D. 1895, who, being duly sworn, says that heretofore to wit, on the 3d day of May, A. D. 1895, John Carno of So Lake Linden, Houghton Co., Mich., at the town of So. Lake Linden, in the said county of Houghton, has taken mortar which belongs to Alfred Leclere, without his consent or his permission, of the value of five dollars, of the goods and chattels and property of Alfred Leclere of So. Lake Linden, in the town of So. Lake Linden, then and there being found, was then and there taken or carried away or feloniously stolen, taken, and carried away, and that he is informed by Jos. Robarge and Herenler Lachance, and believes, and has good reason to believe, that John Carno did feloniously steal, take, and carry away the said above-described goods and chattels, mortar, as above set forth." The warrant issued upon the complaint recites the substance of the complaint, and contains the following further recitation: "And whereas, on examination on oath of said Alfred Leclere and of witness produced by said Alfred Leclere by and before the said justice of the peace, it appears to him, the said justice of the peace, that said offense has been committed, and that there is just and reasonable cause to believe the said John Kessler to have been guilty thereof." The complaint is inartificial, but it contains a description of property belonging to Alfred Leclere, the complaining witness, and it is alleged on the oath of the complainant that the property was taken without his consent, and, further, that the complainant is informed by certain named persons, and has good reason to believe, that John Kessler did feloniously take, steal, and carry away the said above-described goods and chattels. If a complaint on information and belief may be the basis of proceeding before a justice when supplemented by testimony on oath of witnesses cognizant of the facts, we think this complaint was...