Kool v. Lee

• Decision Date: 16 August 1913
• Docket Number: 2463
• Citation: 43 Utah 394,134 P. 906
• Court: Utah Supreme Court
• Parties: KOOL v. LEE

134 P. 906

43 Utah 394

KOOL v. LEE

No. 2463

Supreme Court of Utah

August 16, 1913

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Gerarda C. Lomme Kool against J. W. Lee.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Smith &amp McBroom for appellant.

N. W Sonnedecker, and M. E. Wilson, for respondent.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

This is an action to recover damages for an alleged malicious prosecution and abuse of process. In the complaint, among other allegations, it is alleged that the defendant, with malice and without probable cause, filed a verified complaint before a justice charging the plaintiff with disturbing the peace, a misdemeanor, caused a warrant of arrest to issue, procured the justice to so indorse it as to permit it to be served in the nighttime, caused the sheriff to arrest the plaintiff thereunder in the nighttime and to confine her in a cell in jail from 7 o'clock p. m. on the 3d day of January until 3 o'clock p. m. the next day, when she was arraigned, entered a plea of not guilty, and was released on her own recognizance, and that on the eighth of January the case without a hearing was dismissed on motion of the state. It is further alleged that the defendant intended "not in any way to prosecute the criminal proceedings caused to be instituted against the plaintiff, but intended to use the process of the court and of said proceedings, and did use the same for the purpose of evicting the said plaintiff and her husband from certain premises whereon they were living at the time of the occurrence of the matters and things herein complained of." The answer is a general denial. The case was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff for $ 500 actual damages and $ 100 exemplary damages. The defendant appeals.

The assignments principally relate to the charge; the defendant contending that the complaint and the evidence but showed a case for malicious prosecution and not for an abuse of process, but that the court let the case to the jury on the theory of an abuse of process, and erroneously charged that to maintain such an action allegations and proof of malice and want of probable cause were not essentials.

The evidence on this shows that the plaintiff's husband was in the employ and was a tenant of the defendant, occupying and residing with plaintiff on premises owned by the defendant. A controversy arose between him and them as to an amount due them from him, and also, as claimed by the defendant, with respect to the care of the premises and live stock kept thereon. The defendant himself testified that he had no trouble with them prior to the 24th of December, when he visited the premises. On the 25th he, in writing, notified the plaintiff's husband that "the manner in which you are doing my work at the farm does not meet with my approval, and you will hereby consider yourself discharged and turn over everything pertaining to the farm at once to the bearer of this note, and I hereby request you to vacate the house at your earliest convenience. . . . After you vacate the house, and I find that you have left everything in good condition, you may come to the store and I will settle with you." On the next day, the 26th, the defendant sent plaintiff's husband another notice: "You are hereby legally notified to vacate my house at the above address within three days from the above date." The day following, the 27th, the plaintiff's husband called at the defendant's store, claimed that the defendant owed him sixty-five dollars, demanded that amount, and refused to vacate the premises until it was paid. The defendant denied owing him more than twenty dollars, and offered to pay that, which plaintiff's husband refused to accept. Then, on the 29th, the defendant, through an attorney, caused another written notice to be served on plaintiff's husband, which recited that "you have broken your contract with J. W. Lee (the defendant), and have been duly notified to vacate-the premises," describing them, and that, "notice having expired on December 28, you are hereby legally notified that the rent for occupation of said house commences to-day, December 29, and will be thirty-five dollars per month, payable in advance. Under the laws of the State of Utah, demand is hereby made on you in writing for rent now due on said house as stated above, or in lieu of the rent, as aforesaid, you are notified to vacate the house within three days of the date first above written. To stop further proceedings please comply with the terms of this notice at once." On that day, whether before or after the last notice was served is not made to appear, the plaintiff called at the store of the defendant, again demanded from him sixty-five dollars, and refused to vacate the premises until it was paid. Defendant again offered to pay twenty dollars, which offer was again refused. According to the testimony in behalf of the plaintiff, she and her husband did nothing except to demand the money, and refused to vacate the premises until it was paid. The defendant and other witnesses on his behalf testified that the plaintiff at the store grew angry and excited, talked in a loud tone of voice, paced the floor, shook her fist in the defendant's face, and stated that she would beat him and shoot him if he did not pay the money.

On the 3d day of January the defendant called on the sheriff and his deputy. He told the sheriff that he had had some trouble with the plaintiff and her husband over property; that he wanted to get them off the place; that they were not living up to their contract with him; that they were not satisfactory tenants; and that he did not want them there. The sheriff informed him that he would have nothing to do with the matter until proper papers had been made out. The defendant also told the sheriff that plaintiff's husband had threatened him, and after he had procured the warrant of arrest stated that both the plaintiff and her husband had threatened him. The defendant also stated to the deputy that the plaintiff and her husband had caused him a great deal of trouble; that they had been at his store bothering him, had made charges against him, and had threatened to beat him up, and to shoot him. He was advised to see the county attorney. The defendant, unacquainted with the county attorney, requested the deputy to take him to the office of the county attorney, where a complaint was prepared charging the plaintiff and her husband with disturbing the peace at the defendant's store. The defendant took the complaint to a justice and there verified it. The justice issued a warrant of arrest and delivered it to the defendant.

Our statute provides that, if the offense charged is a felony, the arrest may be made on any day, and at any time of the day or night. If it is a misdemeanor, the arrest cannot be made at night, unless upon the direction of the magistrate indorsed upon the warrant, or unless the offense is committed in the presence of the person making the arrest. The justice made such an indorsement on the warrant. He testified that he could not remember the circumstances of making it, and could not remember any conversation had with the defendant concerning it, but that he did not make it on his own motion, and generally made such indorsements at the request of the officer serving the warrant, or some one representing him.

The defendant, after receiving the warrant, gave it to a deputy sheriff. In pursuance of the warrant the sheriff, two deputies, and the defendant, at about eight o'clock at night on the 3d day of January, proceeded to the place occupied by the plaintiff and her husband, the premises in question. On this point the defendant himself testified:

"After I procured this warrant with the indorsement on it, I went right down to the sheriff's office with four men in the automobile; I don't know whether they were all deputy sheriffs or not; I pointed out the house where Mr. and Mrs. Kool (plaintiff) lived, and then went away; I did not go into the house; I saw some enter the house; I don't know what became of Mrs. Kool and Mr. Kool that night; I cannot say I gave it a thought; I didn't know that they would be put in jail; I knew they would be arrested; at least I expected them to be arrested. . . . I understood that the warrant was going to be served in the nighttime when I left the sheriff's office, having got that understanding in this way. He (the sheriff) requested me to go down with him, and I told him that I would have to go that evening, as I would be unable to go the next morning; I understood that they were to be arrested that evening."

"After the place was reached, and the premises pointed out by the defendant, he left, and, according to his own testimony, "made no further inquiry about it until the next morning." The sheriff and his deputies arrested the plaintiff and her husband, took them in custody, and, without taking them before the justice, confined them in jail, placing them in separate cells, the plaintiff with a female prisoner. They were so confined and detained until three o'clock on the next day, when they were taken before the justice, entered a plea of not guilty, and were released on their own recognizance.

In the meantime the defendant, as testified to by himself, the first thing the next morning after the arrest, directed his teamster to take a load of goods to the premises theretofore occupied by the plaintiff and her husband, to enter and take possession, and, if necessary, to set aside their things, but not to damage them in any way. In pursuance of that direction, the teamster entered and took possession, removed the goods of the plaintiff and...