Schaefer v. Cremer

• Court: Supreme Court of South Dakota
• Writing for the Court: FULLER, J.; HANEY, J. (dissenting).
• Citation: 19 S.D. 656,104 N.W. 468
• Decision Date: 02 August 1905
• Parties: LOUIS SCHAEFER, Plaintiff and appellant, v. PETER CREMER, Defendant and respondent.

19 S.D. 656
104 N.W. 468
LOUIS SCHAEFER,
Plaintiff and appellant,
v.
PETER CREMER,
Defendant and respondent.


South Dakota Supreme Court
Appeal from Circuit Court, Turner County, SD
Hon. E. G. Smith, Judge
Reversed

Jones & Jones
Attorneys for appellant.

L. L. Fleeger
Attorney for respondent.

Opinion filed Aug. 2, 1905

[19 SD 657]

FULLER, J.

The sufficiency of the facts stated to constitute a cause of action for malicious prosecution is the only question presented by this appeal from an order overruling a demurrer to the complaint in which it is alleged, in substance, that on the 15th day of October, 1903, the defendant maliciously and without probable cause charged plaintiff in a sworn complaint before a justice of the peace with the crime of malicious mischief, on account of which he was arrested, and to obtain his release gave a bond in the penal sum of $300.

It appears from the uncontroverted statement in the brief of respondent that the only contention by counsel for appellant in the court below was that an action for malicious prosecution will not lie until the case upon which it is founded has been tried and finally determined on its merits by a jury in a court of competent jurisdiction, and in justice to the learned judge who presided at the trial it should be observed that his attention was apparently not directed

[19 SD 658]

to the failure of plaintiff to state facts showing that the alleged malicious prosecution had terminated in the discharge of the accused. The only allegation pertaining to the matter is as follows:

“That on the 26th day of October, 1903, the time set for the hearing before said justice of the said charge, the said charge was dismissed by the state’s attorney in and for said Turner county, acting for the state, and with the consent of the defendant; that since said time the defendant has not further prosecuted said complaint, but has abandoned the same.”

There being nothing in the complaint to show that the alleged malicious mischief constituted a misdemeanor triable in justice court, because punishable under the statute by imprisonment in the county jail not to exceed 30 days, or a fine not to exceed $100, or both such fine and imprisonment, we shall take the view most favorable to the contention of appellant’s counsel, and assume that the justice of the peace was called upon as a committing magistrate to conduct a preliminary examination under a charge of felony. There seems to be ample concurrence of reason and authority to the effect that an action to recover damages for malicious prosecution is maintainable whenever a proceeding instigated maliciously and without probable cause before a committing magistrate has terminated in the discharge of the accused and the exoneration of his bail, if any is required. Moyle v. Drake, 141 Mass. 238, 6 N.E. 520; Hurgren v. Union Mut. Life Ins. Co. 75 Pac. 168; Waldron v. Sperry, 53 W. Va. 116, 44 S.E. 283; Page v. Citizens’ Banking Co., 111 Ga. 73, 51 LRA 463; Zebley v. Storey, 12 Atl. 569; Coffey v. Myers, 84 Ind. 105; Casebeer v. Drahoble, 13 Neb. 465, 14 N.W. 397; Swensgaard v. Davis, 33 Minn. 368, 23 N.W. 543; Cooley on Torts, 215. While at common law a public prosecutor might enter a nol. pros. upon an indictment without the

[19 SD 659]

consent of the court, that act did not operate as an acquittal, and in this state the practice is abolished by statute, and such officers are powerless to effect a dismissal of a criminal charge pending before a committing magistrate which thereby discharges the accused. As our statute makes it the duty of the magistrate before whom the accused is brought for preliminary examination to grant him an adjournment for a reasonable time to procure counsel, and for that purpose he may be released from custody upon sufficient bail, it is quite evident that the bond for $300 mentioned in the complaint was given to secure plaintiff’s future appearance, and, so far as it is alleged to the...