Potter v. Gjertsen

• Decision Date: 07 November 1887
• Citation: 37 Minn. 386
• Parties: HENRY A. POTTER <I>vs.</I> JOHN C. GJERTSEN.
• Court: Minnesota Supreme Court

37 Minn. 386

HENRY A. POTTER vs. JOHN C. GJERTSEN.

Supreme Court of Minnesota.

November 7, 1887.

Appeal by defendant from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial after a verdict of $500 for plaintiff.

Christensen & Gjertsen, for appellant.

H. A. Odell, for respondent.

GILFILLAN, C. J.

Action for malicious prosecution in procuring plaintiff to be arrested for a criminal offence. On this trial a motion by defendant for judgment on the pleadings was denied. This is alleged as error on these grounds: The answer sets forth a copy of the complaint made by this defendant in the criminal prosecution, and the reply admits it to be a copy. That complaint, made to the municipal court of Minneapolis, in terms charged this plaintiff with having wilfully, unlawfully, wrongfully, and with intent to defraud this defendant, and without his consent, carried away and concealed certain personal property, having previously conveyed the same to this defendant and another by his deed of chattel mortgage, which was attached to and made part of that complaint, the mortgage being in full force and the debt unpaid, contrary to the statute, etc. What was called a mortgage in, and attached to, the complaint, was not a mortgage, but a contract for a conditional sale by this defendant and his partner to this plaintiff; the title to remain in the former till the price should be paid, and the possession to be in the latter till default in payment, or till the property should be removed from a certain place without the consent of the former. Taking the complaint and the instrument attached to it together, they showed no act punishable as a crime; and the defendant, in support of his claim that the court erred in denying his motion for judgment on the pleadings in this action, insists on this proposition: that an action for malicious prosecution will not lie for instituting a criminal prosecution by a complaint which does not show an offence committed.

There are authorities to the effect that an action for malicious prosecution will not lie for instituting a prosecution before a court or magistrate having no jurisdiction to entertain it. Bixby v. Brundige, 2 Gray, 129, (61 Am. Dec. 443;) Marshall v. Betner, 17 Ala. 832. Other authorities hold that in such case the action will lie. Morris v. Scott, 21 Wend. 281, (34 Am. Dec. 236;) Hays v. Younglove, 7 B. Mon. 545; the former of the cases relying upon and citing from Smith v. Cattle, 2 Wils. 376, that "the sting of all these kinds of actions is malice and falsehood, and the injury done in pursuance thereof." It is unnecessary to express an opinion on the point, for there is no question that the municipal court of Minneapolis has jurisdiction to entertain complaints for offences such as the complaint made by defendants attempts to charge.

There is some authority for the proposition that, to serve as a basis for the action, the prosecution must be by a sufficient indictment or complaint. Leigh v. Webb, 3 Esp. 165, in which case the information contained no direct charge, in terms, of a crime, and the facts stated in it showed only a cause of...