McAllister v. Johnson
Citation | 78 N.W. 790,108 Iowa 42 |
Parties | CHARLES MCALLISTER v. THOMAS J. JOHNSON, Appellant |
Decision Date | 07 April 1899 |
Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--HON. FRED O'DONNELL, Judge.
ACTION to recover damages for malicious prosecution. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
Henderson Hurd & Kiesel for appellant.
Lyon & Lenehan and John Hawe for appellee.
The defense interposed by the answer is a general denial. The county attorney was called as a witness in defendant's behalf, and it was sought to be shown that defendant disclosed to him all the facts of the transaction before instituting the prosecution. Defendant was also asked as to the same matter, and further it was attempted to show by him what advice he received from the county attorney. This testimony was ruled out, on plaintiff's objection, and appellant's first complaint is of this action of the trial court. The ground for this holding seems to have been that the defense of advice of counsel must be specially pleaded; that it cannot be shown under a general denial. The gist of plaintiff's action was malice and want of probable cause. Advice of counsel tended to directly rebut or disprove these essential elements. Mesher v. Iddings, 72 Iowa 553. This being true, evidence to establish it was admissible under the pleadings. The rule is that any evidence is admissible under such an issue which tends to disprove the facts that plaintiff is required to establish. Johnson v. Pennell, 67 Iowa 669, 25 N.W 874. In Bowman v. Manufacturing Co., 96 Iowa 188 the action was aided by attachment, and there was a counterclaim for damages for the wrongful and malicious suing out of the writ. The reply was a general denial, and under it plaintiff was permitted to show that he acted under advice of counsel in instituting the attachment proceeding. On appeal by defendant, the admission of this testimony was complained of, and upon this subject it is said in the opinion: In the following cases it is directly held that evidence to show probable cause and the nonexistence of malice is admissible under a general denial: Folger v. Washburn, 137 Mass. 60; Griffin v. Chubb, 7 Tex. 603; Harlan v. Jones, 16 Ind.App. 398 (45 N.E. 481); Kellogg v. Scheuerman, 18 Wash. 293 (51 P. 344). Appellee cites some cases from this court in which advice of counsel was specially set up as a defense in actions like that at bar, and argues from this that the rule has been generally considered to require that such a defense be affirmatively pleaded. We find, however, in Johnson v. Miller (a case that was several times in the court), that in 63 Iowa 529, the answer was a general denial, and in 69 Iowa 562, and 82 Iowa 693 ( ), evidence of advice of counsel was admitted. This seems to have been the case, also, in Logan v. Maytag, 57 Iowa 107, 10 N.W. 311. Our conclusion on this branch of the case is that the court erred in not receiving this testimony.
II. Over defendant's objection, the court admitted in evidence the following judgment entered in the criminal proceeding: "It appearing to the court that this prosecution was found at the instance of a private prosecutor, to wit, Thomas J. Johnson, as shown by his own uncontradicted testimony, and the court being satisfied that the prosecution was instigated by malice, and without probable cause, the costs herein are taxed to said Thomas J Johnson, and judgment rendered herein against him therefor, to which said Thomas J. Johnson excepts." We have serious doubts of the admissibility of this evidence, in any view of the case. We need, however, consider only one ground of defendant's objection. Johnson's name was not indorsed on the indictment, as it is provided in section 4292 of the Code of 1873 shall be done by the grand jury when the indictment is found at the instance of a private prosecutor. The basis of the...
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