McKensie v. Missouri Pacific Ry. Co.

• Decision Date: 18 January 1887
• Citation: 24 Mo.App. 392
• Parties: G. M. MCKENSIE, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 392

G. M. MCKENSIE, Respondent,

v.MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 18, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

THOMAS J. PORTIS, BENNETT PIKE, and H. G. HERBEL, for the appellant.

A. R. TAYLOR and H. D. LAUGHLIN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action for damages for the malicious prosecution of a criminal action. The petition contains three counts, each of them setting up as the ground of the action the malicious procuring by the defendant, through certain of its agents, of an indictment of the plaintiff by a grand jury for the crime of forgery. The answer to each count is a general denial and a plea of the statute of limitations. The defence of the statute of limitations appears to have been abandoned--at least, we do not hear anything of it on this appeal. There was a trial before a jury, and a verdict and judgment in favor of the plaintiff for the sum of two hundred dollars upon each count of the petition. The defendant appeals.

The record is very voluminous, containing three hundred and forty pages of writing. It is our duty to say that we have not had the proper aid from counsel on either side of the case in determining the merits of the appeal. Indeed, the respondent's counsel has filed no brief at all.

I. The first point made by the appellant is, that the action was prematurely brought. This contention is based upon the argument that the plaintiff's motion in the criminal court for the discharge of himself and sureties was overruled, and that he was still held to bail under the original recognizance at the time when this action was brought, which was nearly two years and three months after the overruling of such motion. It appears that the plaintiff was arrested upon a capias issued from the criminal court of the city of St. Louis, upon the grand jury returning the three indictments for forgery against the plaintiff, which have already been spoken of, and that the plaintiff entered into a bond with sureties before the sheriff for his appearance before the criminal court to answer the indictments; but we do not find the bond set out in the record, nor do we find any recital of its terms and conditions. It appears that the three indictments were returned by the grand jury on the sixteenth of February, 1883; that a motion was made by the defendant (now plaintiff) to quash these indictments for insufficiency in law, and that, on the twentieth of April, 1883, the court sustained this motion by the following order of record entered in the three cases: “This day the court, having considered the motion to quash in each of the above entitled causes, and being fully advised thereof, doth sustain such motion. It is, therefore, considered by the court that the defendant be discharged from said indictments, and to go hence and thereof without day.” It also appears that, on the following day, April 21, 1883, the following order was made of record: “This day the court, having considered the motion to discharge the defendant and his sureties herein, and being fully advised thereof, doth overrule said motion.” Oral testimony was given to the effect that the object of the court in refusing to discharge the defendant and his sureties was to give time for the preparation and finding of new indictments against him. The above was the last order which appeared of record in the case at the time of the trial of this action, which commenced on the second of February, 1886, nearly three years after the above orders were made.

It thus appears that the plaintiff in the present action was arrested in consequence of the finding of three indictments against him by the grand jury for the crime of forgery, and that bail was taken by the sheriff. As the conditions of the bail bond were not made to appear at the trial, and as the statute (Rev. Stat., sect. 1832) does not prescribe the terms of the bond or recognizance, we are left to assume that the terms of the recognizance were, to appear in the criminal court, and answer these indictments. Clearly the sheriff would not have been authorized to exact a recognizance to appear for the purpose of answering any other charge. When, therefore, the court quashed the indictments and adjudged that the accused go hence without day, the recognizance was discharged...