Koster v. Seney

• Decision Date: 26 October 1896
• Citation: 68 N.W. 824,99 Iowa 584
• Parties: KOSTER v. SENEY.
• Court: Iowa Supreme Court

99 Iowa 584

68 N.W. 824

KOSTER

v.SENEY.

Supreme Court of Iowa.

Oct. 26, 1896.

Appeal from district court, Franklin county; S. M. Weaver, Judge.

Action for malicious prosecution. Judgment for plaintiff, and the defendant appealed. Affirmed.John M. Hemingway, for appellant.

Taylor & Evans and E. P. Andrews, for appellee.

GRANGER, J.

1. The plaintiff and others executed to the defendant these promissory notes, and secured the same by a mortgage on certain corn and other property. On the 15th day of December, 1893, the defendant filed with a justice of the peace an information charging plaintiff with the crime of larceny in the sale or disposition of the corn so mortgaged. The plaintiff was arrested and imprisoned, and afterwards the prosecution was dismissed, and the plaintiff discharged. Plaintiff brings this action for damages, alleging the prosecution to have been malicious.

2. The two notes secured by the mortgage aggregated $972.75 when made. Of the consideration for the notes $11 was for tickets sold by defendants to plaintiff and others in a lottery scheme for a piano. The court gave to the jury the following instructions: “Under the law of this state, if any mortgagor of personal property, while the mortgage remains unsatisfied, willfully sell or dispose of any of the mortgagee's property, without consent of the holder of the mortgage, he is guilty of larceny. If, then, you find that the defendant held a valid mortgage on plaintiff's corn, and while said mortgage was still unsatisfied, and without defendant's consent, plaintiff sold or disposed of any such corn, aided or assisted in such wrongful sale or disposal, then he was guilty of larceny. But if you find that any part of the debt sought to be secured by such mortgage was for chances or tickets in a raffle or lottery or game of chance, then the instrument was void, and the plaintiff would not be guilty of larceny in disposing of the corn.” The objection is to the latter part of the instruction, in which the mortgage is held void if any part of the debt secured by it was for tickets in a raffle or lottery. Appellant says in argument: “It is well settled that a note given for lottery tickets is void, as well as a note given in payment of a bet. We contend, however, that a note given only in part for lottery tickets, and the balance for a good and valid consideration, is valid so far as the valid consideration goes, when the valid and invalid parts are clearly distinguishable, as in this case.” It will be seen that our consideration is limited to the question of whether or not, when a part of a note is for such a consideration, and that part is distinguishable, the note, as to the valid consideration, is good. It is not important that we consider or determine the common-law rule as to the legal status of a note the consideration of which is “in part legal and in part illegal,” because of the following statute, directly applicable to this case (Code, § 4029): “All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, when the whole or any part of the consideration thereof is for money or other valuable thing won or lost, laid, staked or bet, at or upon any game of any kind or in any wager, are absolutely void and of no effect.” The argument concedes, as it must, that the part of the consideration for the notes represented by the lottery tickets is invalid, and with that concession the statute seems to conclude the question, for it, in terms, makes such notes, and the mortgage securing them, absolutely void, when the whole, or any part, of the consideration thereof is for money or other valuable thing staked or bet at or upon any game of any kind. Both upon reason and authority a lottery is a game,--a game of chance. Bish. St. Crimes, § 952; 8 Am. & Eng. Enc. Law, 993, and authorities cited. The inapplicability of the statute is urged under a claim that a lottery is not within its provisions, and it is said that money paid for chances in a lottery never returns; that it is not laid, staked, or...