Eastman v. Monnastes

• Decision Date: 07 February 1898
• Citation: 51 P. 1095,32 Or. 291
• Parties: EASTMAN v. MONNASTES.
• Court: Oregon Supreme Court

51 P. 1095

32 Or. 291

EASTMAN v. MONNASTES.

Supreme Court of Oregon

February 7, 1898

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by G.L. Eastman against David Monnastes for malicious prosecution. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for malicious prosecution. The complaint alleges in substance, that on February 24, 1892, the defendant maliciously and without probable cause instituted a criminal prosecution against the plaintiff, by filing in the justice's court for South Portland precinct a verified complaint, in writing, charging him with the crime of defacing a building not his own, upon which charge he was arrested, tried, and acquitted. The answer, after denying the allegations of malice and want of probable cause, avers that for some time prior to February 24, 1892, the plaintiff had been a tenant of the defendant, occupying certain rooms in his building as a photograph gallery, but had been notified in writing to vacate and surrender possession thereof; that on the day named, he commenced to vacate said rooms, but preparatory thereto, undertook to, and did, willfully deface remove, and destroy certain parts of the building, against the wish and protest of the defendant; that, acting solely upon the advice of his attorney and the deputy district attorney, the defendant, without malice, instituted the criminal prosecution in question, in good faith and upon probable cause. The reply denies the material allegations of the answer, and affirmatively alleges, in effect, that for about three years prior to February 24, 1892, the plaintiff occupied as tenant a portion of defendant's building, in the city of Portland, as a photograph gallery, and, under the terms of his lease, had a right to erect and maintain, at his own cost and expense, a photographic printing house on or about the building or premises, and to remove the same at pleasure; that, in pursuance of this agreement, he did erect a temporary structure for the purposes indicated, and was engaged in removing the same in a careful and prudent manner, without injury to the defendant's building, at the time of his arrest; and that such removal is the act referred to in the answer and in the complaint filed by the defendant before the justice of the peace. The verdict and judgment being in favor of plaintiff, defendant appeals, assigning error in the admission of testimony, and in overruling his motion for a nonsuit.

C.M. Idleman, for appellant.

W.L. Nutting, for respondent.

BEAN J. (after stating the facts).

From the view we have taken of the ruling on the motion for a nonsuit, it is unnecessary to consider the other questions in the case, and we shall therefore assume, for the purposes of this opinion, that all the evidence admitted was competent. The motion for a nonsuit is based upon the theory that the plaintiff failed to prove that the prosecution was malicious or without probable cause. Upon this point, the bill of exceptions, which contains the affirmative statement that "there was no evidence whatever offered by the plaintiff, of any nature or description other than" as therein stated "concerning malice or want of probable cause," recites that plaintiff, being called as a witness in his own behalf, "testified concerning the arrest as set out in the complaint, and also went into the detail of the matters transacted in the justice's court upon which he claimed to have been arrested upon a warrant issued upon a complaint sworn to by the defendant, and also of his discharge"; also, "concerning the construction of a certain printing house which he claimed had been erected by himself upon the second story, and over and on top of a water-closet of defendant's building, and that he was occupying certain rooms in defendant's building as a photograph gallery, and using the said printing house to print photographs in." Evidence bearing upon the question of damages is then set out, after which it is stated that the plaintiff gave in evidence a copy of the docket entries of the justice's court concerning the arrest, trial, and acquittal of the plaintiff, a copy of which is set out in the bill of exceptions, and also a part of the deposition of one Prescott, to the effect that the printing house referred to was built by the plaintiff at his own cost and expense, over and on top of a small brick building adjacent to the main building, and that the defendant notified him in 1889 that it must either be painted or removed, and that defendant was about the photograph gallery frequently, and witness never heard him make any claim to the printing house. This is all the evidence contained in the bill of exceptions bearing upon the question of malice or probable cause. It thus manifestly appears that there was no evidence of the want of probable cause given on the trial, unless the judgment of acquittal is prima facie evidence thereof, and sufficient to put the defendant on his proof. The charge made against the plaintiff in the justice's court was that of willfully defacing a building not his own, and as to whether defendant had reasonable grounds for making such a charge the bill of exceptions is entirely silent. It only goes...