Murphy v. Larson
| Citation | 1875 WL 8283,77 Ill. 172 |
| Parties | SAMUEL A. MURPHYv.VICTOR LARSON. |
| Decision Date | 31 January 1875 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Ford county; the Hon. O. L. DAVIS, Judge, presiding.
This was an action on the case, brought by Victor Larson, against Samuel A. Murphy, for a malicious prosecution. The opinion of the court states the material facts of the case. The plaintiff recovered judgment for $300 and costs of suit, and the defendant appealed.
Mr. L. E. PAYSON, for the appellant.
This action was to recover damages for malicious prosecution. It is averred defendant maliciously, and without probable cause, procured the arrest of Victor and Olin Larson, on the charge of larceny. On the hearing, the accused were both discharged by the justice of the peace before whom the preliminary trial was had, and thereupon they commenced this suit. During the progress of the trial, Olin Larson was dismissed out of the case, and thereafter the suit progressed in the name of Victor Larson, which resulted in a verdict and judgment in his favor.
The difficulty between these parties grew out of the fact plaintiffs were about to remove some lumber from a farm they had been occupying as the tenants of a former owner. The tenants insisted they owned the lumber, and had a lawful right to remove it, but defendant claimed he had purchased it with the farm. A part of it had been previously removed. On the 14th of March, defendant discovered one of plaintiffs in the act of tearing down a shed, with the intention to remove the lumber for his private use, when a violent altercation took place. Immediately, defendant went to Gibson City to procure legal advice. On the way, he asked Carney who was the best lawyer. Carney said Payne was the best and most successful one, and advised defendant to go to him. Defendant states, however, he was slightly acquainted with a lawyer in town, by the name of Yeomans, and that he first applied to him, but was told by him he was already engaged on the other side. Yeomans, in his testimony, says he told defendant, when he applied to him, that there were two other attorneys, but not attorneys of record--Payne and Woods--and recommended Woods; but defendant most positively denies he told him that Payne and Woods were not licensed attorneys, and asserts that he never heard until the morning of the trial of this cause that Payne was not a regularly licensed attorney.
On the same day, defendant went to the office of Payne & Thrasher, made full and fair statement of all the facts, and they both advised him to have plaintiff arrested on the charge of larceny, and they prepared the necessary papers.
On the trial, defendant offered to prove by Carney that witness was a resident of Ford county, in March, 1874; was acquainted with the attorneys in the county; that B. F. Payne was ostensibly an attorney at law, residing at Gibson City, in that county; that he had an office, with the usual surroundings of a practicing attorney; that he held himself out to the public as such; that he did considerable business as an attorney, in the trial of litigated causes, before a justice of the peace; and that he advised defendant to go to him for legal advice, in the belief he was a good lawyer and a safe adviser; but the court sustained the objections made, and refused to allow the testimony to go to the jury.
Defendant then produced B. F. Payne, and proposed to prove by him that he was an acting attorney at Gibson City; that that was his business and profession; that he so advertised himself by his professional sign at his office, and by advertising; that he kept an office in the city; that defendant consulted him as such attorney, and he, as such attorney, gave him advice, which defendant followed, in the matter of the arrest of plaintiff; that he gave the advice in good faith, and that he believed defendant consulted him in the same spirit; that he was never licensed to practice law, but that defendant did not know he was not a licensed attorney, so far as witness knew. The court ruled that, before the proof was competent, it must appear that Payne was a licensed attorney, learned in the law, and competent to give advice. The decision of the court, refusing to permit the introduction of the evidence tendered, is the principal error assigned.
There can be no question that defendant consulted Payne in the utmost good faith, believing he was an attorney at law, competent to give advice in legal matters; that he made a full and fair statement of all the facts to him in relation to the charge against plaintiff, and, relying upon the...
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