Olson v. Neal
| Decision Date | 09 April 1884 |
| Parties | OLSON v. NEAL |
| Court | Iowa Supreme Court |
Appeal from Hamilton District Court.
ACTION to recover for a malicious prosecution. There was a judgment for plaintiff upon a verdict for one dollar. Defendant appeals. The facts of the case involved in the questions decided are fully stated in the opinion.
AFFIRMED.
Martin & Zelie, for appellant.
Kamrar Pierson & Boeye, for appellee.
I.
The defendant instituted a prosecution before a justice of the peace, wherein he accused plaintiff of the crime of willful trespass. Upon a trial before the justice, plaintiff was convicted, and fined in the sum of $ 4, and judgment was rendered against him in favor of defendant for $ 10--the damage done defendant by the trespass as found by the justice. The act of trespass complained of consisted in the taking by plaintiff of wood and timber purchased by defendant, which was upon land owned by another.
II. The defendant claimed to own the wood taken by plaintiff. A witness on behalf of plaintiff testified that he had sold to defendant, or permitted him to take, "some elm trees." He was asked to state what consideration defendant had paid for the trees, and in reply stated an inconsiderable sum paid by some small service rendered by defendant. This evidence was objected to on the ground that it tended to depreciate the matter in dispute between the parties. We think it should neither have been depreciated nor magnified. The facts of the transaction should be known, and the value of the timber which was the subject of the trespass was a material fact which would aid in determining the animus of plaintiff in taking it and the motive of defendant in instituting the prosecution. Men do not usually commit willful trespass, subjecting them to punishment, by taking property of inconsiderable value, nor do they in good faith, for the purpose of vindicating the law, institute prosecutions against others for such offenses where the injury is trifling.
III. A question asked defendant, while testifying in his own behalf, requiring him to state whether he was prompted by malice in instituting the prosecution against plaintiff, was objected to on the ground, among others, that it was leading. The objection was rightly sustained for the reason that it was leading in form. No attempt was made to so correct the language of the question that it would not be subject to the objection:
IV. Upon the close of plaintiff's evidence, the defendant moved the court to direct the jury to return a verdict for him, on the ground that plaintiff failed to establish facts entitling him to recover. The ground of this motion is, that plaintiff's evidence fails to show, First, that defendant acted maliciously in instituting the prosecution; Second, that he had probable cause therefor; and Third, that he neither avers nor proves the termination of the prosecution. The motion was overruled, and the objections are renewed in this court.
In answer to the first objection urged in the motion, it is sufficient to say that there was evidence upon the questions, both of malice and probable cause, introduced by plaintiff. It cannot be said that there was an absence of evidence upon either point.
V. The ground of the second objection seems to be based by defendant's counsel upon...
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