Duffy v. Scheerger

• Decision Date: 29 May 1912
• Docket Number: 16,745
• Citation: 136 N.W. 724,91 Neb. 511
• Parties: DANIEL B. DUFFY, APPELLEE, v. FRED SCHEERGER, APPELLANT
• Court: Nebraska Supreme Court

136 N.W. 724

91 Neb. 511

DANIEL B. DUFFY, APPELLEE, v. FRED SCHEERGER, APPELLANT

No. 16,745

Supreme Court of Nebraska

May 29, 1912

APPEAL from the district court for Madison county: ANSON A. WELCH JUDGE. Reversed with directions.

REVERSED.

Willis E. Reed, for appellant.

J. C Engleman and Mapes & Hazen, contra.

OPINION

LETTON, J.

This is an action for malicious prosecution and false imprisonment. The first cause of action alleges that the plaintiff, on the 11th day of October, 1906, was arrested and imprisoned upon a warrant issued upon the following complaint: "The complaint of Fred Scheerger made before me, E. G. Dennis, a justice of the peace in and for Madison county, who, being sworn, deposes and says that on the 10th day of October, 1906, in the county of Madison, and state of Nebraska, D. B. Duffy, Elwood Duffy and William Duffy, did, by force, take and carry away one safe belonging to complainant, and still withholds the same. Fred Scheerger. Subscribed in my presence and sworn to before me this 10th day of October, 1906." That at the time the complaint was filed the defendant requested that a warrant for the arrest of plaintiff be issued, and that pursuant to the request the warrant was issued and delivered to a constable, who arrested the plaintiff and kept him in custody from 10 o'clock in the forenoon until 2 o'clock in the afternoon of that day; that the complaint did not charge a criminal offense, and that the arrest was made with improper motives and with the malicious purpose to coerce plaintiff into the giving of security upon an obligation in defendant's favor.

The second cause of action is for malicious prosecution on the charge of unlawfully selling and disposing of mortgaged property without the consent of the mortgagee. It is alleged that a warrant was issued on this complaint, that plaintiff was arrested and a trial had and plaintiff acquitted of the charge. Damages are laid at $ 2,087.80.

The answer is a general denial, except that it is admitted that the defendant signed the complaint set forth in the first cause of action, and that such complaint does not state a public offense under the laws of the state of Nebraska. The defendant also admits signing the complaint alleged in the second cause of action, the issuance of a warrant and arrest of plaintiff thereupon, the final hearing and the acquittal and discharge of the plaintiff. As a defense, however, the answer pleads a full, fair and honest disclosure to the county attorney of all the facts within the knowledge of the defendant, and that upon his advice as county attorney the complaint was drawn by that officer and sworn to by the defendant, and that the prosecution was had in all respects in the utmost good faith; that the defendant is a German, who cannot speak or understand the English language very well and had no knowledge of legal terms and phrases, and that he relied upon the counsel and advice of the county attorney and of one Kilbourn, a practicing attorney, to whom he fully disclosed all the facts within his knowledge, and that he took no steps to prosecute the plaintiff without such advice. The statute of limitations is also pleaded as to the first cause of action. The jury found for the plaintiff on both causes of action, and assessed his damages on the first at $ 417 and on the second at $ 583.

It is contended that the first cause of action did not accrue within one year after the wrong complained of and is barred by the provisions of section 13 of the code. The original petition in the case was filed in March, 1907. The wrong was committed in October, 1906. This was within the time limited by the statute. The fact that an amended petition was afterwards filed amplifying the charge did not make the filing of the amended petition the beginning of the action. It is admitted that the complaint does not charge an offense. The evidence supports a finding that the plaintiff threatened the arrest and afterwards directed the officer holding the warrant to execute it. The evidence as to this cause of action convinces us that it amply supports the verdict of the jury.

The evidence as to the second cause of action shows that Scheerger had been engaged in the agricultural implement business at Battle Creek, Nebraska; that he sold his stock and business to Duffy; that, afterwards, a car of goods came in consigned to Scheerger, which Duffy bought. He gave his note for the purchase price of these goods, and to secure this obligation executed a...