Mauldin v. Ball

• Decision Date: 25 May 1900
• Citation: 58 S.W. 248,104 Tenn. 597
• Parties: MAULDIN v. BALL et al.
• Court: Tennessee Supreme Court

58 S.W. 248

104 Tenn. 597

MAULDIN v. BALL et al.

Supreme Court of Tennessee.

May 25, 1900

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by C. C. Mauldin against W. M. Ball and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Carroll & McKellar, for appellant.

Percy & Watkins, for appellees.

WILKES J.

This is an action for malicious prosecution. The charge is that White swore out a warrant before a justice of the peace for Mauldin's arrest, charging him with obtaining money under false pretenses, and that Ball procured him to commence and continue the prosecution. Mauldin waived examination before the justice of the peace, and was bound over to the criminal court. No indictment was found by the grand jury, and he was discharged, and he thereupon brought the present suit. There was a trial before the court and a jury, and verdict and judgment for defendant, and plaintiff has appealed.

The facts, briefly stated, are that Jim Isom, a negro, owed Mauldin rents. They differed as to the amount. Ball was a commission merchant, and had a mortgage on Isom's crop for supplies furnished. Ball sent a check for $180 to pay the rent. Mauldin declined to receive it as full pay, but agreed to take the money on account. Ball then sent White, his clerk, with $180 in silver to pay Mauldin, and with it a receipt in full for Isom's rent for 1898, to be signed by Mauldin. The money and receipt were handed to Mauldin, and he was asked to sign the receipt, and at the same time he was handed a release to sign for all claims he had upon Isom's crop. Mauldin took the money and counted it, and instead of signing the papers, turned the receipt over, and indorsed on it a receipt for $180 upon Isom's rent for 1897. White declined to receive this paper, and Mauldin declined to sign the others or to give up the money on White's demand. Mauldin kept the money and deposited it in bank, but soon after drew it out, over White's protest, who continued to demand the return of the money, or that the papers be signed. Ball subsequently met Mauldin on the street, and asked him to sign the papers, which he refused to do, and (according to Ball's statement), with an oath, backed into the street, with his hand on his pocket when Ball said to him that it was a good thing the police were not present, or he would put the law to him. Ball thereupon returned to his store, and charged White, his clerk, with the $180; telling him that he had not followed instructions and obtained proper papers, and he would have to lose the amount. Thereupon Ball took White down to the office of Davis, justice of the peace and introduced him to Davis. White related all the facts to the justice of the peace, who advised him that Mauldin was guilty of obtaining money under false pretenses. A warrant was prepared by the justice of the peace. White made the affidavit, and Mauldin was arrested by a special officer appointed under the usual emergency affidavit,--that the business was urgent, and no regular officer was present. The case was set for hearing at 2 o'clock that evening. At that time Mauldin appeared, and at Ball's request the case was about to be continued on account of Isom's absence, when Mauldin waived examination and was bound over to court. He was under arrest some 20 minutes. White and Ball both appeared before the district attorney, and White stated the case, and there was no further attempt to prosecute, the district attorney being of opinion that no offense was committed. After this Mauldin sued Isom, and recovered judgment for $20, balance of rent owing him. Ball & Co. signed the bond in this case, and paid the judgment and costs afterwards for Isom.

It is assigned as error, among other things, that the court incorrectly charged that if White went before a justice of the peace, and fairly and fully laid all the facts before him, and honestly sought his advice, for the purpose of bringing what he supposed to be a criminal to justice, then he had a right to bring the suit, and the law would protect him in bringing the suit. We think this charge faulty in two respects: In the first place, it states, in substance, that if the party sought the advice of the justice of the peace honestly, then he had a right to bring the suit, and the law protects him, without regard to what advice the justice gave him. The charge, if correct at all, should have gone further, and stated that if the party sought the advice, and the justice of the peace gave it, then it would protect; but it does not so state, but simply makes the matter turn upon the seeking of the advice, without regard to what advice, as a matter of fact, was given by the justice of the peace. Again, it justifies the bringing of the suit absolutely because of the advice, while the most that could be predicated of it was that it was evidence of good faith and want of malice. It has been held in this state that the defendant cannot justify absolutely upon the opinion of an attorney, if the facts were incorrectly stated or the opinion is unfounded. Kendrick v. Cypert, 10 Humph. 291. And, again, he cannot defend upon such advice by an attorney if the facts evidently and plainly do not warrant such advice. Morgan v. Duffy, 94 Tenn. 686, 30 S.W. 735. It has never been held in this state that a party can justify bringing a suit upon the advice of a justice of the peace, nor that the advice of a justice of the peace stands on the same footing as that of an attorney. We are cited to quite a number of cases from other states that such is not the rule. Justices of the peace are not charged with the duty of giving advice. It is not their office or function. They have no right to act as attorneys. They may determine for themselves whether the facts stated will justify them in issuing a warrant or commencing proceedings, but this they do judicially and for themselves, and not as advisers of parties seeking to...