Nally v. Richmond

• Decision Date: 24 October 1922
• Citation: Nally v. Richmond, 105 Or. 462, 209 P. 871 (Or. 1922)
• Parties: NALLY v. RICHMOND.
• Court: Oregon Supreme Court

209 P. 871

105 Or. 462

NALLY v. RICHMOND.

Supreme Court of Oregon

October 24, 1922

Appeal from Circuit Court, Lincoln County; G. F. Skipworth, Judge.

Action by Betty Nally against J. O. Richmond. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Arthur Clarke, of Corvallis (McFadden & Clarke, of Corvallis, on the brief), for appellant.

Seneca Fouts, of Portland (J. Hennessy Murphy, of Newport, on the brief), for respondent.

BURNETT C.J.

This is an action for malicious prosecution. Paragraph I of the complaint is as follows:

"That on or about the 6th day of December, 1919, in the city of Newport, county of Lincoln, state of Oregon, the defendant falsely and maliciously, and without reasonable or probable cause, appeared before W. M. Berry, justice of the peace for Newport district, county of Lincoln, state of Oregon, and there, by information, by oath or affirmation applied for a search warrant against the said plaintiff herein, and represented to the said justice of the peace that she, the said plaintiff, had stolen certain personal property belonging to the defendant, and that they were secreted in the house occupied by this plaintiff, a more particular description of said articles being set forth in the search warrant hereafter pleaded in this complaint, and by said statements and information secured and procured the issuance of a search warrant by the said justice of the peace in words and figures as follows, to wit:

" 'In the Name of the State of Oregon. To the Sheriff or Constable of the County of Lincoln--Greeting Information on oath having been this day laid before me that Mrs. John Doe Betty Nally of stealing the articles below listed, you are therefore hereby commanded at any time day or night to make immediate search, on said person or at her residence located in Newport, Lincoln County, for the property below listed, and if you find the same or any part thereof, to bring the same to me at my office. Dated at Newport this 6th day of December, 1919. [ Signed] W. M Berry, Justice of the Peace for Newport District, County of Lincoln, State of Oregon.' "

Appended to the warrant was a list of the articles referred to in the warrant itself. The complaint continues thus:

"That immediately thereafter the said search warrant was delivered to the sheriff of Lincoln county, Or., by the said justice of the peace, and the said defendant, with instructions to search the person or residence of said plaintiff located in Newport, Lincoln county, Or., for the aforementioned property, and in pursuance thereof the said sheriff, accompanied by the marshal of the city of Newport went to the residence of the plaintiff herein, with said search warrant, and under and by virtue of the authority thereof compelled her to allow them to make a search of her residence for said property, and after such search having been thoroughly made, the said property was not found in said residence, nor in her custody, nor on her person, nor any thereof."

The remainder of the primary pleading is devoted to a statement that the sheriff returned the warrant to the effect that he had found no goods, and the general allegation of damages, both compensatory and punitive.

A demurrer was filed by the defendant, on the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendant. This does not seem to have been disposed of by the court.

The record discloses an answer denying the complaint in toto and submitting no new matter. A jury trial resulted in a verdict against the defendant in the sum of $2,000 general damages and $1 punitive damages. From the ensuing judgment the defendant appealed, assigning as errors that the court was wrong in not sustaining the demurrer to the complaint and dismissing the complaint; that the court erred in not granting a nonsuit, in not directing the jury to return a verdict in favor of the defendant, and in submitting the case to the jury.

Excepting the first, these assignments of error involve a consideration of the bill of exceptions. The only document of that kind consists in a report of the testimony adduced at the trial, with the dialogues between counsel and court. Under the doctrine of Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 173 P. 267, 175 P. 659, 176 P. 589, this constitutes a proper bill of exceptions; but, while an inspection of this document shows for illustration the objection of the defendant to the introduction of the search warrant in evidence, on the ground that it was not supported by any affidavit, and that the court overruled the objection, there is no exception taken to the ruling of the court. In brief, this bill of exceptions, so called, discloses that, in all instances where an objection was made to the introduction of testimony or other matter, the defendant submitted to the ruling of the court without protest or objection. It has always been the rule that it is not error simply, but error legally excepted to, that constitutes ground for reversal. Kearney v. Snodgrass, 12 Or. 311, 7 P. 309, and cases which have followed that implicitly down to the present time.

We are limited, then, to the sole question of whether or not the complaint states facts sufficient to constitute a cause of action. As a foreword, it is said in Small v. McGovern, 117 Wis. 608, 94 N.W. 651:

"Public policy requires freedom and safety for the mover of criminal prosecutions, to the end that the guilty may be brought to trial and punishment; hence liability for damages caused thereby to the innocent has been hedged about by limitations more stringent than in the case of almost any other act causing damage to another."

In Cloon v. Gerry, 13 Gray (Mass.) 201, 202, Mr. Chief Justice Shaw wrote:

"This kind of suit, by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, is not to be favored; it has a tendency to deter men who know of breaches of the law, from prosecuting offenders, thereby endangering the order and peace of the community."

This is the atmosphere surrounding a case of this nature.

It is said in 1 Jaggard on Torts, § 197, that:

"To constitute malicious prosecution there must have been an original judicial proceeding."

It is well supported by authority that to cause a search warrant to be issued maliciously and without proper cause is malicious prosecution for which an action will lie. Page v. Citizens' Banking Co., 111 Ga. 73, 36 S.E. 418, 51 L. R. A. 463, 78 Am. St. Rep. 144; Hardin v. Hight, 106 Ark. 190, 153 S.W. 99, 44 L. R. A. (N. S.) 368. Malicious prosecution, as defined by Bouvier, approved in Harrington v. Tibbet, 143 Cal. 78, 80, 76 P. 816, 817, is:

"A wanton prosecution made by a prosecutor in a criminal proceeding, without probable cause, by a regular process and proceeding, which the facts do not warrant, as appears by the result."

Having in mind the rule laid down in Jaggard and Bouvier, it is clear that, as applied to this case, a criminal proceeding must have been commenced. Something must have been done by or at the behest of the defendant to authorize exercise of jurisdiction by the justice of the peace, and the judgment or determination of that officer must be regularly pleaded.

"In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction." Or. L. § 87.

Alluding to this section Mr. Chief Justice Moore, in De Vall v. De Vall, 57 Or. 128, 136, 109 P. 755, 759, used this language:

"When, however, a party alleging a judgment of a subordinate tribunal elects to set forth the facts conferring power to hear and determine a cause, the pleading must be complete in this respect and state all the facts necessary to give jurisdiction. Fishburn v. Londershausen, 50 Or. 363, 373, 92 P. 1060; 14 L. R. A. (N. S.) 1224."

The same doctrine is laid down in Canuto v. Weinberger, 79 Or. 342, 345, 155 P. 190. In other words, the pleader may aver the proceedings of the court of limited jurisdiction according to their tenor, if he will; or he may avail himself of the provisions of section 87, Or. L., and plead them according to their legal effect, so to speak, by saying that the judgment or determination was duly made or given. In this instance, the plaintiff has not employed the abbreviated form allowed by the Code. It was therefore incumbent upon her to state in detail all the facts necessary to give the justice of the peace jurisdiction to act, and it must be averred that the defendant did the things by which alone that jurisdiction is acquired.

Let us advert for a moment to sections 1854, 1855, and 1856, Or. L., governing the issuance of search warrants:

"A search warrant cannot be issued but upon probable cause, shown by affidavit, naming or describing the person and describing the property and the place to be searched." Section 1854.

"The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in

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