Murphy v. Martin

• Decision Date: 25 September 1883
• Citation: 16 N.W. 603,58 Wis. 276
• Parties: MURPHY v. MARTIN.
• Court: Wisconsin Supreme Court

58 Wis. 276

16 N.W. 603

MURPHY

v.MARTIN.

Supreme Court of Wisconsin.

Filed September 25, 1883.

Appeal from circuit court, Richland county.

Three causes of action are alleged in the complaint: (1) One for falsely, maliciously, and without any reasonable or probable cause whatever, making a complaint and information on oath to a justice of the peace in Illinois, whereupon, and according to the prayer of the defendant, a warrant was issued by the justice and the plaintiff arrested thereon for robbery, November 21, 1877, and taken before the justice and there prosecuted by the defendant upon such complaint and information; and upon such prosecution was in due manner, by due course of law, acquitted of the premises and duly discharged therefrom, November 22, 1877. (2) One for falsely, maliciously, and without any reasonable or probable cause whatever, making a similar complaint and information on oath to the justice, praying for a warrant, and upon which a warrant was issued, and the plaintiff again arrested, November 22, 1877, and brought before the justice, who required him to give bail for his appearance at a circuit court in that state, and which bail was given, and in which court the defendant caused and procured the plaintiff to be indicted for a riot, and upon which indictment the plaintiff was tried by the procurement of the defendant in said circuit court according to the form of the statute in such case made and provided, and was in due manner and in due course of law acquitted of the premises, and discharged of and from the premises in the said indictment specified. (3) One cause of action for slandering the plaintiff, in stating that he had stolen certain property named. The answer admits the several complaints, warrants, arrests, examinations, indictment, trial, and discharges, and besides a general denial, except as admitted, denies specially that such arrests, etc., were made or caused by the defendant, either falsely, maliciously, or without reasonable or probable cause for so doing, and also sets up special matter in defense to each of the alleged causes of action. On the trial, and before the defendant entered upon his proofs, the court was given to understand that the question of slander was not insisted upon. The jury, under the instructions of the court, returned a verdict for the defendant, and from the judgment entered thereon this appeal is brought.Eastland & Son and Michael Murphy, for appellant, Michael Murphy.

Black & Burnham, for respondent, James Martin.

CASSODAY, J.

The plaintiff, having expressly waived any claim for damages by reason of the alleged slander, prior to the submission of the case to the jury, as appears from the bill of exceptions, is in no position to assign error in the manner of submitting, or the failure to submit, that issue to the jury. Such statement in the record must be treated by this court as a verity. If counsel differed with the learned trial judge in regard to the truth of this statement, as he claims, his remedy was to have the record corrected prior to the hearing on this appeal. The distinction between malicious prosecution and false imprisonment is clearly pointed out in one of the cases cited by counsel for the appellant. Colter v. Lower, 35 Ind. 285. It is there said: “If the imprisonment is under legal process, but the action has been commenced and carried on maliciously and without probable cause, it is malicious prosecution. If it has been extrajudicial, without legal process, it is false imprisonment.” Manifestly, this is the true distinction. The first, as well as the second, cause of action alleged in the complaint before us, charges imprisonment under legal process commenced and carried on maliciously and without probable cause, and hence is for malicious prosecution. Counsel claims, however, that the first cause of action alleged is sufficient for an illegal arrest and false imprisonment, and cites the case above referred to, and Sorenson v. Dundas, 50 Wis. 335, [S. C. 7 N. W. REP. 259,] in support of it. The first case is clearly against him, and the second case seems to be clearly distinguishable, for it was there expressly alleged that the “imprisonment was unlawful.” Here there is no allegation indicating that the arrest or imprisonment was extrajudicial or without legal process. On the contrary, according to the allegations, they were both upon complaint duly made, warrant regularly issued, and proceedings, examination, and trial regularly had according to the forms of law. Such arrest and imprisonment were confessed in the...