Nicholson v. Roop

• Court: North Dakota Supreme Court
• Writing for the Court: NELSON; MORRIS, C. J., GRIMSON, CHRISTIANSON and SATHRE, JJ., and NELSON
• Citation: Nicholson v. Roop, 62 N.W.2d 473, 43 A.L.R.2d 1031 (N.D. 1954)
• Decision Date: 04 February 1954
• Docket Number: No. 7385,7385
• Parties: NICHOLSON v. ROOP et al.

Page 473

62 N.W.2d 473

43 A.L.R.2d 1031

NICHOLSON v. ROOP et al.

No. 7385.

Supreme Court of North Dakota.

Feb. 4, 1954.

Syllabus by the Court.

1. In an action for malicious prosecution where defendants have preserved the record by moving for dismissal of the action at the close of plaintiff's case and have moved for directed verdicts at the close of all of the evidence and after adverse verdict have, within ten days after its rendition and before the entry of judgment, moved for judgment notwithstanding the verdict on the ground that the evidence is insufficient to support the verdict, which latter motion was granted, the correctness of the ruling on the motion may be reviewed by the supreme court.

2. Where in such action, at the close of all of the evidence, defendants moved for directed verdicts on the grounds that the evidence wholly failed to show any lack or want of probable cause, or malice, such motions were sufficiently specific to apprise the court of the law question on which defendants relied and to apprise opposing counsel of the particulars wherein the evidence was insufficient to support a verdict.

3. Where under proper instructions a verdict has been rendered on conflicting evidence it may not be set aside by the trial court on a motion for judgment notwithstanding the verdict, or by the supreme court on appeal, but where movant has properly preserved the record by timely motions for dismissal and for directed verdicts and the motion for judgment notwithstanding the verdict has been granted this court may review the evidence for the purpose of determining whether there is any legal evidence to sustain the verdict.

4. In considering the sufficiency of the evidence to sustain the verdict which has been set aside on a motion for judgment notwithstanding the verdict the evidence must be considered in the light most favorable to plaintiff, and the verdict will not be set aside if there is any evidence to sustain it.

5. In such action a defendant will not be held liable where he in good faith acquaints the proper public officers with the fact that a crime has been committed, signs a complaint alleging the facts constituting the crime and names the person who committed it and later, at the request of the prosecuting attorney, testifies as a witness upon the preliminary hearing regarding the identity of the person accused, if in fact the crime alleged had been committed and the complaining witness had probable cause to believe the plaintiff guilty thereof.

6. A complaining witness in a criminal action is not liable for a mistake of identity made by the public officer or officers in charge of the prosecution.

W. J. Austin, Bismarck, for plaintiff and appellant.

Cox, Cox, Pearce & Engebretson, Bismarck, for defendants and respondents.

NELSON, District Judge.

Plaintiff brings this action for damages for malicious prosecution. In his complaint, after alleging the corporate capacity of defendant bank and that defendant Roop was, at all of the times material here, its vicepresident, he alleges that because of the acts of the defendants a complaint charging him with the crime of obtaining money by false pretenses was filed with a justice of the peace of Burleigh County, North Dakota; that under the warrant issued thereon he was brought before said justice and after preliminary hearing had on the charge made against him he was bound over to the District Court of Burleigh County, North Dakota, to answer to said charge and because of his inability to furnish bond for his appearance in said court was incarcerated in the county jail of Burleigh County for more than sixty days; that the criminal action brought against him was dismissed on the application of the State's Attorney and the proceeding thus terminated in his favor, and by reason of the foregoing facts he suffered actual and special damages in the sum of $26,200 for which he asks judgment and in addition thereto he asks that he be awarded punitive damages in the further sum of $5,000.

Defendants answer jointly and except for admitting the corporate capacity of defendant bank and that defendant Roop was its Vice President as alleged, deny all of the other allegations of the complaint. For an affirmative defense defendants allege that a person describing himself as Houston Nickelson on August 26, 1947, opened an account in defendant bank by depositing therein a check for $900 drawn on the Exchange State Bank of Glendive and the following day the same person wrote a check on defendant bank in the sum of $400 payable to 'Cash' and that defendant bank then paid said person the sum of $400; that the $900 check was returned by the bank on which it was drawn unpaid and marked 'No A/C'; that shortly thereafter defendant Roop reported the foregoing facts to the Assistant State's Attorney of Burleigh County, North Dakota, at whose request said Roop signed a criminal complaint charging Houston Nickelson with the crime of obtaining money by false pretenses; that Houston Nickelson could not then be found and that on August 21, 1951, the State's Attorney's office of Burleigh County, North Dakota, received, a telegram from the Chief of Police of Portland, Oregon, saying he had Lester I. Nickelson, alias Houston Nickelson, in custody, that extradition was waived and requested instructions. The answer further alleges that the defendants never signed any complaint against Lester I. Nicholson nor asked for his arrest and that all matters were handled by the duly and regularly constituted police officers of Burleigh County, North Dakota, and denied that any act on the part of defendants resulted in any damage to plaintiff.

At the close of plaintiff's case defendants made separate motions that the action be dismissed, both of which were denied. An action may be dismissed only on one or more of the grounds stated in Section 28-0801 NDRC 1943 and dismissal of the action under this statute leaves the issues undetermined and the plaintiff free to sue again. Westerso v. City of Williston, 77 N.D. 251, 257, 42 N.W.2d 429.

Defendants offered no evidence and after both sides had rested made the following separate motions for directed verdicts which were resisted:

'Defendant, Norman I. Roop, moves that this Court direct the jury to return a verdict of dismissal of the action which is against him on the grounds and for the reasons that the evidence wholly fails to establish a cause of action against the defendant.

'The evidence wholly fails to show or to establish by a preponderance of the evidence any malice or malicious intent on the part of the defendant, or any lack or want of probable cause and the defendant, First National Bank of Bismarck, moves that this Court direct the jury to return a verdict in its favor for a dismissal of plaintiff's cause of action upon the same grounds and reasons that the plaintiff has failed to establish a cause of action against the defendant and has failed to prove any malice or malicious prosecution or lack of probable cause in the institution originating in the orginal criminal proceeding.' (Emphasis ours.)

A motion for a directed verdict seeks not only the termination of the action but the destruction of the cause of action as well. If granted it puts an end to the claim against which it is asserted. 53 Am.Jur. 255, Sec. 308; Westerso v. City of Williston, supra.

Our statute, Section 28-1509 NDRC 1943, as amended by Chapter 204, SLND 1951, makes it mandatory on the trial court to deny a motion for directed verdict when resisted. The statute provides:

'When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request.'

The trial court accordingly denied both motions and submitted the case to a jury, which, on July 6, 1952, returned a verdict in favor of plaintiff and against both defendants. Although the court is required to deny the motion in the first instance such ruling is subject to review on a motion for judgment notwithstanding the verdict made within ten days after rendition of the verdict. Section 28-1510 NDRC 1943, as amended by Chap. 204, SLND 1951, provides:

'In denying a motion for a directed verdict the court shall be deemed to have submitted the action to the jury subject to a later determination of the questions of law raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict, * * *.'

On July 9, 1952, counsel for defendants filed with the trial judge their written motion for judgment notwithstanding the verdict, setting forth as grounds therefor '1. That the evidence wholly failed to show that there was want of probable cause for the commencement of the criminal proceeding against Houston Nicholson, and that the evidence conclusively established that probable cause existed.

'2. That the evidence affirmatively establishes that there was no malice on the part of either defendants in the institution of the criminal proceedings.

'3. That the evidence affirmatively establishes that the institution of criminal proceedings was with the advice and consent and approval of the Assistant State's Attorney of Burleigh County, the county in which the proceeding was commenced.

'4. That the evidence establishes probable cause for the institution of the criminal proceedings by the testimony of the committing magistrate who bound the plaintiff over to the District Court.

'5. That, as a matter of law, probable cause for the commencement of criminal proceedings existed against Houston Nicholson at the time of the...