Olson v. Tvete
| Decision Date | 25 May 1891 |
| Citation | 48 N.W. 914,46 Minn. 225 |
| Parties | O. C. Olson v. K. K. Tvete |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Otter Tail county, where the action (brought to recover $ 10,000 for malicious prosecution) was tried before Searle, J., and a dismissal ordered at the close of plaintiff's case.
Judgment reversed.
Chas L. Lewis, for appellant.
Knute Nelson, for respondent.
1. An action for damages will lie for maliciously and without probable cause procuring the issuance and execution of a search-warrant for goods alleged to have been stolen. Carey v. Sheets, 67 Ind. 375; Whitson v. May, 71 Ind. 269; Miller v. Brown, 3 Mo. 127. Such a proceeding not only involves an imputation of criminal conduct on the part of the person whose premises are thus subjected to search, but it contemplates the arrest of the person if, upon search, the property is found in his possession. Such is the direction in the search-warrant. So prejudicial were such proceedings deemed to be, and so liable to abuse, that there was embodied in our constitution a declaration of the principles, recognized at common law, that no warrant should issue but "upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Const. art. 1, § 10; 1 Chit. Crim. Law 64 et seq. To institute such a proceeding maliciously and without probable cause is a wrong for which an action will lie.
2. At the trial the plaintiff presented proof tending to show that the defendant caused the proceeding to be instituted and carried on; that upon a search of his premises in accordance with the directions of the warrant the property alleged to have been stolen and to be there concealed was not found that this was so returned by the officer with his warrant; and that the plaintiff had long borne a good reputation for honesty and integrity. The court then dismissed the action. We think that the proof made a prima facie case of want of probable cause, from which malice might be inferred, and that it was error to take the case from the jury. It is true that the burden was upon the plaintiff to show that the proceeding was instituted by the defendant without probable cause and with malice. But in such a case it must often be that the only proof possible from the plaintiff is of a negative character, and in reference to matters peculiarly within the knowledge of the defendant; and hence less satisfactory and convincing proof is required of the plaintiff to shift the burden on the defendant than would otherwise be necessary. The proof of a thorough search, and the official return to the warrant that the property was not found in the plaintiff's possession, was prima facie proof that the property was not...
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