Hall v. Dare

• Decision Date: 02 April 1928
• Docket Number: 20974.
• Citation: Hall v. Dare, 147 Wash. 264, 266 P. 162 (Wash. 1928)
• Parties: HALL v. DARE et ux.
• Court: Washington Supreme Court

266 P. 162

147 Wash. 264

HALL v. DARE et ux.

No. 20974.

Supreme Court of Washington

April 2, 1928

Department 1.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Action by James W. Hall against Lewis A. Dare and wife.Judgment for plaintiff, and defendants appeal.Reversed and remanded, with directions to dismiss action.

H. E Gorman, of Bremerton, for appellants.

Hartge & Cadwallader, of Seattle, for respondent.

MITCHELL J.

James W. Hall owned and lived on a residence property at Winslow in Kitsap county.During his ownership of it he erected a flagpole on the property.He mortgaged the property.The mortgage foreclosed the mortgage and became the purchaser at sheriff's sale.Thereafter Hall remained on the premises as a tenant.The purchaser at the foreclosure sale sold and conveyed the premises to Lewis A. Dare and his wife, Muriel V. Dare, who let Hall remain on the premises as their tenant for a month.During that month Hall removed the flagpole from the premises.Thereupon Dare verified a criminal complaint before a justice of the peace against Hall for the removal of the pole.Upon his arrest and trial he was convicted and adjudged to pay a fine of $25 and costs 'said fine of $25 to be remitted provided tenant would replace said flagpole in its original position on said premises.'Hall appealed to the superior court, wherein some time thereafter, on motion of the prosecuting attorney apparently without any showing whatever, an order was entered dismissing the action with prejudice, without stating any reason other than the motion of the prosecuting attorney.Thereafter the present action was brought by Hall complaining that by a conspiracy between Dare and his wife they had maliciously caused him to be prosecuted before the justice of the peace.Upon issues being made up the case was tried to a jury, and the defendants have appealed from a judgment in the sum of $350 against them entered upon the verdict.

The controversy is somewhat unfortunate.All of the parties, it appears, are reputable citizens.Without question, however the flagpole was the property of Dare and his wife; it was a part of the realty.Hall v. Dare,142 Wash. 222, 252 P. 926, 50 A. L. R. 635.There is not in the case any tangible reasonable proof of any so-called conspiracy on the part of the appellants nor of any malicious prosecution.The respondent contends that the verdict of guilty in the justice of the peace court does not establish the existence of probable cause to excuse appellants from liability for two reasons: First, because the judgment of the justice of the peace is void; and, second, the appellantLewis A. Dare swore falsely at that trial.On the first proposition the argument is that in a justice of the peace court, it being a court of limited jurisdiction, the complaint must affirmatively allege facts showing jurisdiction; that the prosecution in this case was for larceny; that section 2605 Rem.Comp. Stat., defines larceny as grand larceny where the value of the property stolen is more than $25, and is a felony, and every other larceny as petit larceny which constitutes a misdemeanor; that a justice of the peace has no jurisdiction to hear and determine felony cases nor any larceny case other than petit larceny; and that the criminal complaint in this cause being silent as to the value of the flagpole, it is therefore contended that since it does not affirmatively appear upon the face of the complaint that the defendant was charged with a crime which the justice of the peace had power to hear and determine, the judgment is void.There is no claim that a justice of the peace is without power to hear and determine a complaint charging a...