Neys v. Taylor

• Decision Date: 07 February 1900
• Citation: 81 N.W. 901,12 S.D. 488
• Parties: NEYS v. TAYLOR.
• Court: South Dakota Supreme Court

81 N.W. 901

12 S.D. 488

NEYS v. TAYLOR.

Supreme Court of South Dakota

February 7, 1900

Appeal from circuit court, Moody county; Joseph W. Jones, Judge.

Action by Catherine Neys against I. C. Taylor. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo Rice (Aikens & Judge, of counsel), for appellant.

Keith & Warren, for respondent.

CORSON J.

This is an action for damages for an alleged malicious prosecution. Verdict and judgment for the plaintiff, and the defendant appeals. It appears from the evidence that in the summer and fall of 1895 the plaintiff resided with her husband upon a certain farm in Moody county, and that on or about the 15th of November they left the farm, leaving a small portion of their household effects in the dwelling, and took a restaurant, or hotel and restaurant, in the village of Egan. About the 2d day of January, the plaintiff, with her husband concluded to return to the farm, not finding the business of keeping the hotel profitable. When they arrived at the farm they found the dwelling house locked, and two men inside, who refused to open the door, and admit the plaintiff or her husband. The plaintiff claimed that while being kept out of the house, some half hour or more, she became quite ill, and begged her husband to take her into the house, where she could lie down, as she was not able to go back to town. Thereupon the husband, being still refused admission, broke a window, entered therein, and subsequently admitted the plaintiff, who immediately lay down. A short time after the entrance of the husband and wife into the house, the defendant appeared, and upon inquiring what had happened or "what the fuss was about," and being told by the men who were previously in the house that the husband of the plaintiff had broken in the window, and, with the plaintiff had entered the house, the defendant thereupon immediately proceeded to town, and made complaint against the plaintiff, her husband, and some two or three teamsters who were hauling household goods from the town for the plaintiff and her husband, charging them with "having willfully, maliciously, and unlawfully broken into the house of John C. Taylor, *** in said Moody county, by tearing down and breaking the windows of said dwelling house while the same was occupied by the hired man" of the said defendant. A warrant was issued by the justice, and placed in the hands of the constable, who, with the defendant, returned to the dwelling house, and arrested the said parties, including the said plaintiff, and took them before the justice of the peace of the said town of Egan, where an examination was entered upon as to all the parties arrested, except the plaintiff, who, being too ill to attend the examination, waived the same. The plaintiff remained ill at the restaurant in Egan until the 17th of January, when she again returned to their farm. At the following term of the circuit court in and for Moody county the state's attorney made a statement, in which he declined to file an information against the said parties so arrested, stating his reasons therefor; and thereupon the plaintiff in this action, together with the other parties arrested, was discharged. In the answer in this action the defendant admitted that he appeared before the justice of the peace in the village of Egan, charged the plaintiff with the commission of a criminal offense, substantially as alleged in the plaintiff's complaint, and caused the arrest of the said plaintiff, but denied that he acted maliciously or otherwise than in good faith, honestly believing that the plaintiff was guilty as charged in the complaint; admitted that a warrant was issued, and that the plaintiff was arrested under and by authority of the same; that she was taken before said justice, and required to give bail for her appearance at the next regular term of the circuit court in and for said Moody county; and that she appeared before said court, and was discharged, and the said action against her dismissed, upon the motion of the state's attorney in and for said county. On the trial of this action the plaintiff testified: "I was living on our place south of Egan; got the land from I. C. Taylor. Q. Under contract?" Defendant objected to this question as incompetent, immaterial, and irrelevant. Objection was overruled, and exception taken. The answer was, "Yes, sir." The witness was then shown Exhibit D, being a contract for the sale of land executed by John C. Taylor to the plaintiff's husband, Peter Neys. Defendant objected to the said contract as incompetent, immaterial, and irrelevant, the objection was overruled, and defendant excepted. By the contract offered, it appears that Neys, the husband of the plaintiff, had paid $1,100 at the date of making the contract, February 1, 1895, and that the next payment was to be made on the 1st day of November, 1897, and, inferentially at least, said Neys was entitled to the possession of the said premises until default should be made in the payment of the sums stipulated in the said contract. The appellant contends that the admission of this contract in evidence was error, as the question of the respective rights of the parties to...