Hoppe v. Klapperich, Nos. 34312

CourtSupreme Court of Minnesota (US)
Writing for the CourtMATSON
Citation224 Minn. 224,28 N.W.2d 780
Decision Date27 June 1947
Docket Number34362.,Nos. 34312
PartiesHOPPE v. KLAPPERICH et al.

224 Minn. 224
28 N.W.2d 780

HOPPE
v.
KLAPPERICH et al.

Nos. 34312, 34362.

Supreme Court of Minnesota.

June 27, 1947.


Action by Helen M. Hoppe against Hilda M. Klapperich and others for malicious prosecution and abuse of process. From orders sustaining defendants' demurrers to the complaint, plaintiff appeals.

Reversed.

[28 N.W.2d 783]

Syllabus by the Court

1. In an action for malicious prosecution, malice is a fact to be pleaded as such, and it would be bad pleading to set forth the evidence to establish it; likewise, want of probable cause, though made up of a question of fact and a question of law, is a fact for the purpose of pleading and may be stated directly.

2. The essential elements of an action for abuse of process are only two, namely, (a) the existence of an ulterior purpose, and (b) an act of using the process to accomplish a result for which it was not designed.

3. The gist of an action for abuse of process is the misuse or misapplication of the process, After it has once been issued, for an end other than that which it was designed to accomplish, and the regularity or irregularity in the issuance of the process in the first instance is immaterial.

4. In order to support an action for abuse of process, there must be either an injury to the person or to property.

5. It was a question of fact whether the actual arrest and jailing of plaintiff, which followed her refusal to surrender certain property, was made as a continuation of the abuse of process, or whether such arrest and imprisonment was made pursuant to the lawful purpose for which the warrant was designed.

6. If a general demurrer is interposed to a whole pleading and such pleading contains at least one good cause of action, such demurrer must be overruled, in that it must be good to the whole extent to which it is interposed.

7. A judicial officer cannot be called to account in a civil action for his determinations and acts in his judicial capacity, however erroneous or by whatever motives prompted.

8. The rule of immunity, which extends to all classes of courts and applies to the highest judge of the nation and to the lowest officer who sits as a court and tries petty cases, is not to be scuttled or avoided by pleading that the acts complained of resulted from a conspiracy previously entered into.

9. Absent all jurisdiction, there is no immunity for a judicial officer, regardless of his station.

10. A justice court is of special and limited jurisdiction and is confined strictly to the power conferred on it by statute, and this power must be exercised in the manner prescribed.

11. In issuing a warrant without first having a complaint reduced to writing and subscribed by complainant as required by statute, a municipal judge vested with powers of a justice of the peace in criminal matters acts wholly outside his jurisdiction and in a nonjudicial capacity, and for such act he can claim no immunity from liability in a civil suit for damages.

12. A sheriff is protected from liability for acts done in executing the process and orders of a court having jurisdiction of the subject matter when the process is fair on its face, and he cannot be made liable for its execution in a legal manner even if he personally knows of jurisdictional defects in the preliminary proceedings pursuant to which the process was issued; but this rule affords a sheriff no protection where he is a party or is the complainant in causing the process to be wrongfully issued solely for his own benefit.

13. In using a warrant of arrest for a purpose for which it was not designed, a ministerial officer, such as a sheriff, is acting entirely outside the scope of his official duties, and in so doing he forfeits the protection which would otherwise be

[28 N.W.2d 784]

his if he executed such process for the purpose for which it was intended.

14. Malice possessed by an attorney, or by him knowingly furthered in behalf of a client, if coupled with a want of probable cause, thwarts the administration of justice and is not sheltered by any privilege or official immunity.

15. Assuming the joint existence of the essential elements of (a) Malice and (b) Want of probable cause, an action for damages for malicious prosecution lies against an attorney if in instituting the proceedings he knew of his client's malicious motives or if he himself was actuated by malice; and then only if, in addition, he did not have, upon the disclosure of alleged facts made by the client and by him accepted in good faith as true, a reasonable basis for believing there was a probable cause for the prosecution, or if he otherwise had knowledge showing an absence of probable cause.

16. An attorney is personally liable to a third party if he maliciously participates with others in an abuse of process or if he maliciously encourages and induces another to act as his instrumentality in committing an act constituting an abuse of process.


Appeal from District Court, Stearns County; Byron R. Wilson, Judge.

Lauerman & Pfeiffer, of Olivia, for appellant.

Lawrence M. Hall and E. J. Ruegemer, both of St. Cloud, for respondent Hilda M. Klapperich.


Allen A. Atwood, of St. Cloud, and W. F. Freeman, of Minneapolis, for respondent Allen A. Atwood.

Phillips & Sherwood, of St. Cloud, for respondent W. Y. Henning, judge of municipal court.

Quigley, Donohue & Quigley, of St. Cloud, for respondent Art McIntee, sheriff.

MATSON, Justice.

Plaintiff brought an action against Hilda M. Klapperich, her attorney, Allen Atwood, Art McIntee, sheriff of Stearns county, and W. Y. Henning, municipal judge of the city of St. Cloud, for (1) malicious prosecution, and (2) abuse of process. Each defendant interposed a separate demurrer upon the ground that the complaint did not state a cause of action. This is an appeal from the orders sustaining the demurrers.

Upon demurrer, we are concerned not with a determination of the truth of plaintiff's allegations, but with the sole problem of whether such allegations are (1) legally sufficient in form so as to constitute good pleading, or (2) whether such allegations, even if found to be true upon trial, would entitle plaintiff to judgment as a matter of substantive law. A demurrer admits all material facts well pleaded, but such admission is solely for the purpose of testing their legal sufficiency. If a party cannot, under his pleadings, prove facts which, if established, will entitle him to judgment, there is no purpose in wasting the time of the court and the opposing party in going to trial.1

Pursuant to plaintiff's complaint, the facts as alleged under the first cause of action are these: Plaintiff, Helen M. Hoppe, was the owner of a gold wrist watch before and on July 11, 1945. On that day, defendant Klapperich as principal and defendant Atwood as her attorney and agent, ‘acting in concert with the defendants Henning and McIntee, knowingly, wrongfully, maliciously and without probable cause, procured the issuance of a warrant for the plaintiff's arrest by the defendant Henning acting as the magistrate of said Municipal Court.’ The warrant charged plaintiff with the theft of the gold watch from John Klapperich, deceased, which charge ‘all of the defendants on said date and prior thereto knew, or ought to have known, was entirely false.’

The warrant is alleged to have been issued by Henning without first requiring the complaint to be reduced to writing and to be subscribed as required by

[28 N.W.2d 785]

M.S.A. s 629.42, which fact was or should have been known to all the defendants. Plaintiff was arrested under this warrant and held in the St. Cloud jail. While there held, she was compelled to deliver the watch to sheriff McIntee.

Plaintiff was then caused to appear in the municipal court which had issued the warrant to answer the charges against her. Upon investigation by the county attorney, ‘it became known that the defendants had wrongfully and unlawfully by reason of such warrant caused the plaintiff to be arrested and imprisoned,‘ with the result that on August 2, 1945, upon motion of the county attorney, the proceedings were dismissed and plaintiff discharged. Following the dismissal the watch was returned.

Plaintiff's second cause of action, for abuse of process, rests on the following allegations: Plaintiff was the owner of a manila envelope containing certain bonds, negotiable instruments, and other valuable papers. She alleges that it was the intent of defendants to force her to part with the envelope and its contents by threatening her with arrest and prosecution on a criminal charge of having stolen the aforementioned watch. In pursuance of that plan, defendants procured the issuance of the warrant by Judge Henning. Sheriff McIntee then, acting for himself and as agent for the other defendants, went to the residence of plaintiff accompanied by Atwood. There, in the presence of Atwood, he informed plaintiff that he had a warrant for her arrest for the theft of the watch, but if she turned over to him the envelope with its contents he would not arrest her. On the other hand, if she refused to give up the envelope, he would arrest her and confine her in the county jail in execution of the said warrant. Plaintiff refused, and she was then arrested, confined in jail, and caused to appear in the municipal court. Upon inquiry by the county attorney, ‘it became known that the defendants had wrongfully and unlawfully by reason of such warrant and arrest attempted to intimidate the plaintiff and extort her property from her, and had thereby abused the criminal process of the State of Minnesota, and had wrongfully and unlawfully caused the plaintiff to be imprisoned,‘ with the result that the proceedings, upon motion of the county attorney, were dismissed and plaintiff discharged. The arrest and confinement are alleged to constitute a continuing abuse of process for the purpose of forcing her to give up her personal property.

1. The demurrer of defendant Klapperich was sustained on the ground that...

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86 practice notes
  • Loeffelholz v. CITIZENS FOR LEADERS, No. 27256-3-II.
    • United States
    • Court of Appeals of Washington
    • 13 Enero 2004
    ...v. Abrams, 28 Wash.App. 737, 745, 626 P.2d 984, review denied, 95 Wash.2d 1033, 1981 WL 191156 (1981) (quoting Hoppe v. Klapperich, 224 Minn. 224, 231, 28 N.W.2d 780 102. Batten, 28 Wash.App. at 746, 626 P.2d 984 (W. Prosser, Torts § 121, at 856-58 (4th ed.1971)). 103. See RCW 42.30.030 ("A......
  • Wheeldin v. Wheeler, No. 493
    • United States
    • United States Supreme Court
    • 3 Junio 1963
    ...for abuse of process: Williams v. Kozak, 4 Cir., 280 F. 373; Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229; Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 173 A.L.R. 819. If so, and if we assume that this claim is actionable under California law 5 (postponing, for the moment, the que......
  • Peterson v. Knutson, No. 45333
    • United States
    • Supreme Court of Minnesota (US)
    • 8 Agosto 1975
    ...1960); Adkins v. Underwood, 370 F.Supp. 510 (N.D.Ill.1974); United States v. Clark, 249 F.Supp. 720 (S.D.Ala.1965); Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947); Payne v. Lee, supra; Linder v. Foster, 209 Minn. 43, 295 N.W. 299 (1940); Murray v. Mills, 56 Minn. 75, 57 N.W. 324 (......
  • Huendling v. Jensen, No. 53368
    • United States
    • United States State Supreme Court of Iowa
    • 10 Junio 1969
    ...v. Perkins, 299 Ky. 470, 185 S.W.2d 954, 173 A.L.R. 797, 801; Henry v. Albert, 268 Minn. 316, 129 N.W.2d 317, 319; Hoppe v. Klapperich, 224 Minn. 224, 235, 28 N.W.2d 780, 788, 173 A.L.R. 819, 832; Edwards v. Wiley, 70 N.M. 400, 374 P.2d 284, 285; Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853......
  • Request a trial to view additional results
86 cases
  • Loeffelholz v. CITIZENS FOR LEADERS, No. 27256-3-II.
    • United States
    • Court of Appeals of Washington
    • 13 Enero 2004
    ...v. Abrams, 28 Wash.App. 737, 745, 626 P.2d 984, review denied, 95 Wash.2d 1033, 1981 WL 191156 (1981) (quoting Hoppe v. Klapperich, 224 Minn. 224, 231, 28 N.W.2d 780 102. Batten, 28 Wash.App. at 746, 626 P.2d 984 (W. Prosser, Torts § 121, at 856-58 (4th ed.1971)). 103. See RCW 42.30.030 ("A......
  • Wheeldin v. Wheeler, No. 493
    • United States
    • United States Supreme Court
    • 3 Junio 1963
    ...for abuse of process: Williams v. Kozak, 4 Cir., 280 F. 373; Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229; Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 173 A.L.R. 819. If so, and if we assume that this claim is actionable under California law 5 (postponing, for the moment, the que......
  • Peterson v. Knutson, No. 45333
    • United States
    • Supreme Court of Minnesota (US)
    • 8 Agosto 1975
    ...1960); Adkins v. Underwood, 370 F.Supp. 510 (N.D.Ill.1974); United States v. Clark, 249 F.Supp. 720 (S.D.Ala.1965); Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947); Payne v. Lee, supra; Linder v. Foster, 209 Minn. 43, 295 N.W. 299 (1940); Murray v. Mills, 56 Minn. 75, 57 N.W. 324 (......
  • Huendling v. Jensen, No. 53368
    • United States
    • United States State Supreme Court of Iowa
    • 10 Junio 1969
    ...v. Perkins, 299 Ky. 470, 185 S.W.2d 954, 173 A.L.R. 797, 801; Henry v. Albert, 268 Minn. 316, 129 N.W.2d 317, 319; Hoppe v. Klapperich, 224 Minn. 224, 235, 28 N.W.2d 780, 788, 173 A.L.R. 819, 832; Edwards v. Wiley, 70 N.M. 400, 374 P.2d 284, 285; Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853......
  • Request a trial to view additional results

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