Moriarty v. Almich

• Decision Date: 20 December 1918
• Docket Number: No. 21006.,21006.
• Citation: 169 N.W. 798,141 Minn. 247
• Parties: MORIARTY v. ALMICH et al.
• Court: Minnesota Supreme Court

141 Minn. 247

169 N.W. 798

MORIARTY

v.ALMICH et al.

No. 21006.

Supreme Court of Minnesota.

Dec. 20, 1918.

Appeal from District Court, Le Sueur County; C. M. Tifft, Judge.

Action by Michael Moriarty against William Almich and others. Directed verdict for defendants, and from an order denying his motion for a new trial, plaintiff appeals. Order affirmed.

Syllabus by the Court

Defendants preferred charges of arson against the plaintiff to a grand jury in September, 1914, but no indictment was returned. Thereafter the state fire marshal investigated the origin of the fire and submitted a transcript of the evidence obtained, together with a suggestion that the matter be submitted to the next grand jury, to the county attorney, whereupon the county attorney caused a subpoena to be served upon all witnesses, to be and appear before the grand jury at the September, 1915, term of court, which resulted in the finding of the indictment and prosecution complained of. Held, that the defendants did not institute the prosecution before the grand jury that returned the indictment, so as to render them liable, for want of probable cause, in an action for malicious prosecution. W. H. Leeman, of Henderson, and Thos. Hessian, of Le Sueur, for appellant.

F. C. & H. A. Irwin, of Belle Plaine, and Francis Cadwell, of Le Sueur, for respondents.

QUINN, J.

On September 14, 1913, a barn owned by the defendant, Augusta Crosby, and situated upon her farm in Le Sueur county, together with certain personal property belonging to her son, William Crosby, was destroyed by fire. The fire started inside the barn near the manger where the horses stood. On September 24, 1915, the grand jury of the county returned an indictment against Michael J. Moriarty, Louis Kahlow, and Louis Malz, charging them with maliciously burning the same. Accordingly the accused parties were arrested and in March, 1916, tried upon such charge, and acquitted. Thereafter this action was brought to recover damages from the defendants for maliciously instituting such criminal prosecution against the plaintiff without probable cause. At the close of the testimony, upon motion of the defendants, the court directed a verdict in their favor. From an order denying his motion for a new trial, the plaintiff appealed.

The real question litigated upon the trial was whether the defendants instigated the criminal prosecution before the grand jury that returned the indictment without probable cause.

The record is voluminous, the testimony at times took a pretty wide range, but when sifted out it appears therefrom that the defendants in this action, as well as those in the criminal prosecution, in September, 1913, all resided in the township of Tyrone, in Le Sueur county, within a radius of a little over one mile; that there is a highway known as the St. Paul road which extends north and south in this vicinity; that the barn was about 6 rods to the east and plaintiff's residence about one mile north therefrom on the same side of this highway; that the defendant William Crosby is a son of the defendant, Augusta Crosby, and resided with her upon the premises where the fire occurred; that the defendant Almich is a brother of Mrs. Crosby, and resided within about 100 rods of her place; and that the fire occurred at about 9 o'clock Sunday...