Gray v. Acton
| Decision Date | 21 March 1930 |
| Docket Number | 13,788 |
| Citation | 170 N.E. 614,96 Ind.App. 646 |
| Parties | GRAY ET UX v. ACTON |
| Court | Indiana Appellate Court |
Rehearing denied June 13, 1930. Transfer denied May 17, 1933.
From Marion Municipal Court; Thomas E. Garvin, Judge.
Action by Lillian Acton against John Gray and wife for malicious prosecution. From a judgment for plaintiff, the defendants appealed.
Affirmed.
Clarke & Clarke, for appellant.
White & Jones, for appellee.
Appellants were owners as tenants by entireties of two adjacent city lots, and, December 21, 1921, appellee contracted with appellants for the purchase of one of the lots, on which day she and her husband took possession and moved into the house located thereon. Under the contract, the consideration was to be paid in installments, fee to remain in appellants until installments were paid. All went well for about three years, when a controversy arose between the parties as to a driveway between the two houses, and which led to a garage in the rear, a part of the driveway, as located, being upon appellee's lot; appellants claimed that it was a joint way, and that they had an easement for driveway purposes over that part included in appellee's lot. On the other hand, appellee claimed that appellants had no such easement, and to enforce her claim erected a partition fence along and upon the driveway, the fence being located wholly upon appellee's lot. Appellants tore down the fence as soon as it was built. The fence was twice rebuilt by appellee, but each time it was torn away by appellants. Appellant John Gray then signed and swore to an affidavit charging appellee with malicious trespass in going upon the way and erecting the fence; this affidavit was made the basis of a prosecution, and a trial resulted in an acquittal. Whereupon, appellee began this action against both appellants for malicious prosecution. About the same time appellants, claiming that appellee, by failing to pay certain installments when due under the contract, had forfeited all right to the property, began a suit against appellee and her husband to quiet their title thereto, and by a separate paragraph of complaint they sought to establish their right, as owners of the lot, to an easement for the right of way in the lot sold to appellee. On the trial of the suit to quiet title, the evidence showed that appellee had paid installments totaling $ 1,300, but had become delinquent in her payments, in violation of the contract, and judgment was rendered quieting title as prayed; but on the other paragraph as to the easement the court found against appellants. Later, a trial of the action for malicious prosecution resulted in a verdict and judgment for appellee against both of the appellants, from which this appeal is prosecuted.
With its general verdict, the jury returned answers to interrogatories, the answers being in substance as follows: The prosecution against appellee for malicious trespass was based upon the affidavit of John Gray in which Frieda Gray did not join; that at the time affidavit was filed appellee was occupying the premises in question as equitable owner, under contract to purchase from appellants; that upon filing affidavit for malicious trespass appellants consulted an attorney, but did not fully inform such attorney as to all the facts and circumstances connected with the case; and that the attorney advised prosecution.
On the trial of the cause, there was competent evidence to support the jury in its answers to the interrogatories, as there was competent evidence of all the facts above detailed.
Action of the court in overruling appellants' separate motions for new trial is assigned as error, and the reasons for new trial presented by this appeal are, the sufficiency of the evidence to sustain the verdict, and the alleged error in giving of certain instructions.
As to the sufficiency of the evidence to sustain the verdict against appellant John Gray, no discussion is necessary. It is enough to say that the evidence is sufficient. Most of appellants' brief is utilized in an effort to show that the evidence is insufficient to sustain the verdict against appellant Frieda Gray. It is strenuously contended that since Frieda Gray did not herself sign the affidavit for malicious trespass she can not be held liable for the malicious prosecution. In that view we do not concur. In an action for malicious prosecution based upon an affidavit which charged a criminal offense, liability is not limited to the person or persons who signed the affidavit; all persons concerned in originating and carrying on the prosecution are jointly and severally liable. Johnson v. Brady (1915) 60 Ind.App. 556, 109...
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