Henderson v. McGruder

• Court: Indiana Appellate Court
• Writing for the Court: LAIRY, J.
• Citation: Henderson v. McGruder, 49 Ind.App. 682, 98 N.E. 137 (Ind. App. 1912)
• Decision Date: 27 March 1912
• Docket Number: 7,173
• Parties: HENDERSON v. MCGRUDER

98 N.E. 137

49 Ind.App. 682

HENDERSON v. MCGRUDER

No. 7,173

Court of Appeals of Indiana

March 27, 1912

From Superior Court of Marion County (74,447); C. E. Weir, Judge.

Action by Thomas McGruder against William Henderson. From a judgment for plaintiff, the defendant appeals.

Reversed.

Charles B. Clarke, Walter C. Clarke, Clement M. Holderman, for appellant.

John W Holtzman, Lewis A. Coleman, for appellee.

OPINION

LAIRY, J.

This was an action brought by appellee to recover damages from appellant for alleged malicious prosecution. The material averments of the complaint are, that, on June 26, 1906 appellant filed an affidavit before Charles C. Pettijohn, a justice of the peace, pro tem., in and for Center township, Marion county, Indiana, charging that appellee, Thomas McGruder, on June 25, 1905, in said county and State, did violently, with force and arms, and without authority of law, take possession of certain real estate described; that a warrant was issued by said justice of the peace upon said affidavit, and appellee was arrested on said warrant, and gave bond for his appearance; that he was afterward tried by said justice of the peace, and convicted; that such conviction was procured by introducing in evidence a false and fraudulent execution, known to appellant to be false and fraudulent, and by the false testimony of said appellant, to the effect that he was the owner of the real estate described in the affidavit; that appellee appealed the case to the Criminal Court of Marion county, where he was afterwards tried and acquitted; that said prosecution was instituted by appellant maliciously, and without probable cause; that appellant was damaged as a result of such prosecution.

The errors relied on for reversal are as follows: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the trial court erred in overruling appellant's motion for a judgment on the answers to the interrogatories notwithstanding the general verdict; (3) the court erred in overruling appellant's motion for a new trial.

The sufficiency of the complaint is questioned for the first time in this court by assignment of error. The first question raised, in reference to the complaint, is that it shows on its face that the prosecution on which it is based, and which is alleged to have been malicious, was instituted before a justice of the peace pro tem. In behalf of appellant, it is contended that the averments show that the justice of the peace, before whom the affidavit was filed, was without jurisdiction to hear and determine the case and that his entire proceeding was coram non judice and void, that it was not a proceeding before a judicial tribunal such as to form the basis for an action for malicious prosecution, and that if appellee had any cause of action as the result of his arrest, his remedy was by an action for trespass.

In presenting this question, both parties have proceeded on the assumption that the justice of the peace pro tem., mentioned in the complaint as the judicial officer before whom the affidavit was filed, was appointed by a justice of the peace to serve temporarily under the provisions of § 1718 Burns 1908, Acts 1905 p. 110, which reads as follows: "That in any and all townships in which is located a city having a population, as shown by the last preceding United States census, of fifty thousand or more, that if from any cause any justice of the peace in such township shall be unable to attend and preside over his court during any day or number of days, not to exceed sixty days in any one year, such justice of the peace may appoint, in writing, any reputable attorney of such township to preside during the time such justice of the peace is unable to attend and preside. Such written appointment shall be entered on the order-book or record of such court, and such appointee shall, after taking the oath prescribed for justices of the peace, and by executing and filing the bond now required of such justice of the peace in and for such township, conduct the business of such court, subject to the same rules and regulations as duly elected justices of the peace, and shall have the same authority during the continuance of his appointment." The averments of the complaint do not show that Charles C. Pettijohn was appointed by any legally qualified justice of the peace of Center township, Marion county, or that any of the provisions of the statute were complied with in making such appointment. It does not show that the justice making the appointment was unable for any reason to attend and preside over his court for any day or any number of days, or that the appointment was made in writing and entered on the order-book or record of the court, or that the person appointed was a reputable attorney of such township, or that he took the oath or executed the bond provided by such statute. If this complaint had been tested by demurrer, it would probably be held insufficient to show that the person before whom the affidavit was filed had jurisdiction as a justice of the peace to hear and determine the case, but where it is tested for the first time on appeal, a more liberal rule is applied. Burkhart v. Gladish (1890), 123 Ind. 337, 24 N.E. 118; Citizens' St. R. Co. v. Willoeby (1893), 134 Ind. 563, 33 N.E. 627; Bertha v. Sparks (1898), 19 Ind.App. 431, 49 N.E. 831. The complaint does aver that the affidavit was filed before Charles C. Pettijohn, a justice of the peace pro tem., in and for Center township, Marion county, Indiana, and that thereupon said Charles C. Pettijohn, justice of the peace pro tem., then and there having jurisdiction of said cause, issued a warrant for the arrest of defendant. It is thus defectively averred that Pettijohn was a justice of the peace pro tem., and that he had jurisdiction of the proceeding. We take judicial notice of the statute heretofore set out, and of the fact that Center township, Marion county, Indiana, contains a city of more than fifty thousand population, according to the United States census of 1900. We hold that the facts thus defectively averred are sufficient after verdict to show that the justice of the peace pro tem., mentioned in the complaint, had jurisdiction of the proceedings upon which this action is based.

The complaint shows on its face that appellee was convicted before the justice of the peace, and was acquitted on appeal. If the complaint contained no further allegations on this subject, it would be defective, for the reason that the fact of such a conviction before a justice of the peace would show a probability of guilt, and would rebut and overcome the general averments of malice and the want of probable cause; but where the complaint, as in this case, contains averments of fact, showing that the conviction before the justice of the peace was procured by the fraud and false testimony of defendant, such conviction is not conclusive of the want of probable cause, and the complaint will be held sufficient. Welch v. Boston, etc., R. Corp. (1884), 14 R.I. 609; Phillips v. Village of Kalamazoo (1884), 53 Mich. 33, 18 N.W. 547; Boogher v. Hough (1889), 99 Mo. 183, 12 S.W. 524. In the case last cited, it was alleged that plaintiff was convicted of a criminal libel, because of the fraudulent act on the part of defendants in depriving him of the testimony of his principle witness, but that upon appeal the judgment was reversed. It was held that the fraudulent act complained of rebutted the presumption of probable cause, which would otherwise arise from such conviction. The court said: "These allegations, that the former conviction was thus obtained by fraud and unfair means alleged, we think sufficiently obviate, and countervail the force and effect of plaintiff's admission in his amended petition, that he was convicted of said charge as aforesaid. The pleading is to be taken in its entirety. The fraudulent and oppressive acts charged to have been committed by defendants, to procure the judgment, overcame the force and effect which the judgment would otherwise have."

Did the trial court err in overruling appellant's motion for judgment in his favor on the answers to interrogatories notwithstanding the general verdict? A general verdict in favor of the plaintiff is a finding in his favor on every fact material to a recovery, and answers to interrogatories will...