Merkle v. Otteusmeyer

• Decision Date: 31 March 1872
• Citation: Merkle v. Otteusmeyer, 50 Mo. 49 (Mo. 1872)
• Parties: RICHARD MERKLE, Appellant, v. C. HENRY OTTEUSMEYER, Respondent.
• Court: Missouri Supreme Court

50 Mo. 49

RICHARD MERKLE, Appellant,

v.C. HENRY OTTEUSMEYER, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Peacock and Cornwell, for appellant.

Irwin Z. Smith, for respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action for malicious prosecution. The defendant had prosecuted the plaintiff for removing a corner-stone denoting a corner of defendant's lot, which had been placed there by a deputy surveyor of St. Louis county.

On the trial the plaintiff offered to prove that the stone so placed at the corner by the county surveyor was not at the true corner, and the court excluded his evidence and the plaintiff excepted. After all the evidence was closed, the court instructed the jury to the effect that the plaintiff could not recover unless the prosecution was instituted maliciously and without probable cause, and that both malice and want of probable cause must concur to justify a finding for the plaintiff; and also to the effect that if the deputy county surveyor placed the stone, afterwards removed by the plaintiff, on the ground to mark the corner, and if the defendant had reasonable cause to believe that the stone had been removed by the plaintiff, then there was probable cause for the prosecution. The plaintiff objected to these instructions and saved his exceptions and took a nonsuit, with leave to move to set it aside, and afterwards filed this motion, which was overruled He took the case to the general term, and the judgment being affirmed, he has appealed to this court.

1. The testimony offered by the plaintiff to show that the...