Richmond v. Whitaker, 42400.
| Decision Date | 23 June 1934 |
| Docket Number | No. 42400.,42400. |
| Parties | RICHMOND v. WHITAKER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Frank S. Shankland, Judge.
Action at law to recover damages for alleged malicious prosecution. Verdict and judgment for the plaintiff, and the defendant appeals.
Affirmed.
Lappen, Carlson & Clarke, of Des Moines, for appellant.
Chester J. Eller, of Des Moines, for appellee.
The propositions relied upon by appellant for reversal necessitate a somewhat detailed statement of the record. Appellant was formerly a dealer in automobiles at Albany, Mo. On or about the 7th day of February, 1930, he went to the place of business of appellee for the purpose of selling an Essex coupé. A sale was effected, and, according to the claim of appellant, the same was procured by certain false and fraudulent statements and representations of appellee. These concern the automobile, its prior ownership, use, and possible incumbrances thereon. Appellee testified that he purchased the car on February 2d, 1930, from one Gibbons, who executed a bill of sale to him, reciting that it was free and clear of all incumbrances. The testimony on behalf of appellant tended to show that appellee represented that the automobile was new, had never been registered, but that the same had been used by the Richmond Motor Company, of which firm appellee was a member, of Albany, Mo., as a demonstrator. The automobile bore a dealer's license number issued in Missouri, but it had never been registered in that state.
The automobile was, in fact, purchased on August 21, 1929, by Gibbons of a dealer at Perrysburg, Ohio. On the same date, a chattel mortgage on the automobile was executed by Gibbons to the dealer to secure a note for $610.08. This mortgage was promptly recorded in the proper office in Ohio. Appellant promptly sold the automobile to a purchaser residing in Greene county, Iowa. Some months after the sale thereof to this purchaser, it was taken from him by a writ of replevin in favor of the holder of the note and chattel mortgage referred to. A compromise was effected by appellant with the plaintiff in the replevin suit, and thereafter an information was filed by him in the municipal court in the city of Des Moines charging appellee with the crime of cheating by false pretenses. Appellee was arrested and placed in jail, remaining there, however, but a very short time. Upon preliminary hearing, appellee was discharged by the magistrate. He was subsequently indicted by the grand jury of Polk county, but the same was voluntarily dismissed by the county attorney. Appellee charges in his petition that the prosecution was instituted by appellant in the municipal court and also that he maliciously procured the indictment to be presented against appellee. It will thus be seen that the representations of appellee, which are admitted, that the automobile was free from incumbrance, were not, in fact, true. It also appears without conflict in the evidence that the automobile was not new and had never, in fact, been used as a demonstrator by appellee. At the conclusion of appellee's testimony and again at the conclusion of all the evidence, appellant moved for a directed verdict. The principal propositions relied upon by appellant for reversal are presented by these respective motions. We shall, however, before giving consideration to the exceptions urged at this point, dispose of the remaining questions involved.
[1][2] As stated above, the automobile bore the dealer's license of the Richmond Motor Company. Appellee was examined by his counsel as to the law of Missouri respecting the use of license plates generally. He answered that a license plate issued to the owner of a car is retained by him in case he sells the same and may be used on another automobile; that is, the witness said: “Well, when you buy your license for an automobile the license goes with the man and not the car like it does in Iowa.”
Objection was urged to this testimony by appellant upon the ground that it was not the best evidence. A motion to strike the answers of the witness based upon the same ground was also interposed. The objection to the testimony and motion to strike were both overruled by the court, and the evidence was permitted to remain in the record.
Evidence of the law of Missouri touching the subject of the inquiry was certainly admissible. If the statutes of that state covered the subject, they might be offered in evidence. It is also true that an attorney, versed in the law of the state of Missouri, would have been a competent witness to testify thereto. His testimony could not be excluded upon the ground that it was not the best evidence. It may be that appellee was not a competent witness to testify to the matters stated, but his competency was not challenged. The statute of the state of Missouri bearing upon the subject was later introduced in evidence by appellant, and, no doubt, properly presented in argument to the jury. No reversible error is presented at this point.
[3] II. Appellant requested a large number of instructions. Although not shown by the record, it is conceded by appellee that the requested instructions were refused by the court. Some of the requested instructions were argumentative in character; some stated the law too favorably to appellant; and much that was proper therein was included in the charge given to the jury by the court. Time was given appellant by the court within which to file a motion for a new trial, together with exceptions to the instructions. A document, denominated a motion for a new trial in arrest of judgment for judgment notwithstanding the verdict and for new trial, was filed by appellant within the time fixed by the court. Complaint is made in this document filed of some of the instructions given by the court, but they are disregarded in the statement of propositions and in the brief and argument of appellant. The exceptions, if such they may be called, to the refusal of the court to give the requested instructions, are as follows: “The court erred in failing to give to the jury the instructions requested by the defendant, to wit: [Setting out the serial numbers thereof.]” Exceptions in this form do not comply with the statute and cannot be considered by this court. Section 11495, Code 1931; Duncan v. Rhomberg, 212 Iowa, 389, 236 N. W. 638;Wilson v. Else, 204 Iowa, 857, 216 N. W. 33;State v. Grigsby, 204 Iowa, 1133, 216 N. W. 678;State v. Burch, 202 Iowa, 348, 209 N. W. 474;State v. Dillard, 207 Iowa, 831, 221 N. W. 817.
[4][5] III. The court permitted appellee to prove that an indictment was returned by the grand jury against appellee upon the charge named in the information filed in the municipal court. Objections were interposed by appellant to this testimony, and error is assigned upon its admission. The indictment was, in fact, introduced in evidence by appellant and later, with the permission of the court, withdrawn by him. As stated, the petition charged the unlawful and malicious procurement of the indictment by appellant. The court permitted the testimony complained of to go in upon the promise that evidence would be offered connecting appellant therewith. None was offered, and all of the testimony, except the mere fact of the return of the indictment, was subsequently withdrawn by the court. Whether prejudice could, under some circumstances, have resulted from the admission of this testimony, if erroneous, we need not consider, as the court in one paragraph of its charge specifically instructed the jury that no evidence whatever in any way connecting appellant with the procurement of such indictment had been offered, that the evidence relating thereto had been withdrawn, and that the jury should give no heed or consideration thereto, except of the mere fact that an indictment was returned. The instruction is so clear, definite, and specific in its terms that no prejudice could possibly have resulted from the admission of the testimony. It was proper for the record to show that the prosecution was terminated and that the indictment had been finally disposed of. We assume that the court permitted the...
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