Staley v. Turner

• Decision Date: 09 March 1886
• Citation: 21 Mo.App. 244
• Parties: J. W. STALEY, Respondent, v. FRANK D. TURNER, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 244

J. W. STALEY, Respondent,

v.FRANK D. TURNER, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 9, 1886.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

T. J. ROWE, for the appellant: “In order to charge an attorney upon this ground, it must not only appear that there was an agreement to bring an action which was, in fact, groundless, but that it was agreed to bring an action understood by both parties to be groundless, and brought as such.” Bicknell v. Dorion, 16 Pick. (Mass.) 490. There must be an absence of any just demand, of which fact the defendants have knowledge, and it must be shown that they, applying the law for some purpose of their own, and not for the purposes of their client, committed the injury complained of by the plaintiff. Stockley v. Hornidge, 8 Car. & P. 16; Wheeler v. Nesbitt, 24 How. (U. S.) 545; Stansbury v. Fogle, 37 Md. 369; Gilbert v. Emmons, 42 Ill. 143; Weeks on Attorneys, sect. 133. The instructions offered by the appellant were proper. See Vansickle v. Brown, 68 Mo. 627; Sparling v. Conway, 75 Mo. 512; Sharpe v. Johnston, 59 Mo. 557; S. C., 76 Mo. 670.

WILLIAM J. DONLIN, for the appellant: The defendant's belief in the plaintiff's guilt, induced by facts and circumstances sufficient to raise a suspicion of guilt in the mind of a reasonably cautious person, it is a justification. Angelo v. Faul, 85 Ill. 108; Collins v. Hayte, 50 Ill. 353. “Anything which will create in the mind of a reasonable man the belief that a felony existed, and that the party charged was in any way concerned in it, is probable cause.” Braveboy v. Cockfield, 2 McMullan, 270, 274; Vansickle v. Brown, 68 Mo. 635; Sims v. McLendon, 3 Strobhart, 557, 560. The action of a grand jury in finding a bill of indictment, or the commitment of the prisoner by the examining magistrate, is prima facie evidence of probable cause. Brant v. Higgins, 10 Mo. 728; Graham v. Noble, 13 Serg. & R. 233; Bacon v. Towne, 4 Cush. 217; Sharpe v. Johnston, 59 Mo. 557; The State v. Railey, 35 Mo. 168.

A. R. TAYLOR, of counsel for the appellant

C. P. & J. D. JOHNSON, with whom is JOHN B. ROEDER, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages for the malicious prosecution of a criminal action. The plaintiff had a verdict and judgment, in the sum of one thousand dollars, and the defendant appeals. The case has been presented on the part of the appellant by able counsel, in three separate written arguments. These arguments direct our attention to the following objections:

I. That there was a total failure to prove the case stated in the petition. The petition recited in substance that the defendant caused a certain Lillie Wallace, alias Lillie O'Donnell, to charge, before the prosecuting attorney of the St. Louis court of criminal correction, that the plaintiff had feloniously made and forged a certain chattel mortgage, and that the defendant had thereby procured the prosecuting attorney to grant a warrant for the arrest of the plaintiff upon this charge; that the prosecuting attorney issued the said warrant; that the plaintiff was arrested under the same and was compelled to give bail, etc.; and that thereafter, upon an examination of the charge, the grand jury ignored a bill of indictment for the same. The evidence was to the substantial effect that the defendant and one Morris were partners in the practice of the law; that they were counsel for the woman Lillie Wallace, alias Lillie O'Donnell, in a certain controversy between her and the Staley House Furnishing Company, touching the goods described in the chattel mortgage above stated; that the Staley House Furnishing Company, claiming the goods under the chattel mortgage, had demanded possession of them; that thereafter the defendant had gone to the office of the plaintiff, exhibited to him the chattel mortgage in question, called his attention to the words therein, “S. W. Cor. Seventh and Clark avenue,” which had been interlined therein by the plaintiff after the same had been signed and acknowledged by Lillie O'Donnell, and threatened the plaintiff with a criminal prosecution for forgery if the Staley House Furnishing Company made any attempt to take forcible possession of the goods; that, within a week thereafter, the Staley House Furnishing Company brought an action of replevin for the goods; that a criminal information, with the affidavit of the private prosecutor thereto, had been drawn up and filled out partly in the handwriting of the defendant and partly in that of his partner, Morris; that, on the day after the action of replevin was brought, this information was presented by Morris to the prosecuting attorney of the court of criminal correction, who, upon the affidavit of Lillie O'Donnell being made thereto, signed the same; that, upon this information, the clerk of the court of criminal correction issued a warrant for the arrest of the plaintiff, charging him with the crime of forgery; that he was arrested under this warrant; that the prosecuting attorney authorized the defendant and Morris to appear in his stead as representing the state at the preliminary examination; that the plaintiff underwent a preliminary examination on the charge before the court of criminal correction, the defendant and Morris appearing for the state; that the plaintiff was, by the court of criminal correction, bound over to appear at the next term of the criminal court in the sum of one thousand dollars, and that the grand jury of the criminal court subsequently ignored a bill of indictment charging against him the offence stated.

The fatal variance between the allegations and evidence is supposed to lie in the fact that the petition states that the warrant of arrest was issued by the prosecuting attorney of the court of criminal correction, whereas it was, in fact, issued by the clerk of that court. From this it is argued that the plaintiff states one case and endeavors to prove another; that the case which he states is no case of malicious prosecution at all, but merely a case of assault and battery and false imprisonment, or of false and malicious arrest; that we must judicially know that the prosecuting attorney of the court of criminal correction has no authority to issue a warrant for the arrest of any one; that, if he did so issue a warrant, it was void, and the officer making the arrest under it was merely a trespasser; and that, under such a state of the case, the action would be for a false arrest against the prosecuting attorney issuing the void warrant, or the officer making the arrest under it, or both.

We are of opinion that the point is not well taken. We regard it as a mere question of variance between the allegation and the proof. The substantial fact charged was that the warrant of arrest had issued upon a charge of forgery; that the plaintiff had been arrested thereunder, and that the prosecution had failed by reason of the fact that the grand jury had subsequently ignored the bill. The fact that the officer issuing the warrant was mis-described, was, in our opinion, a mere case of variance under the statute between the allegation and the proof, to which the attention of the court should have been directed at the trial, and, this not having been done, the question can not be raised now, for the first time, on appeal.

II. The next substantial point made in behalf of the appellant is, that upon the law and the evidence there was no case against him to go to the jury, and that the court ought to have directed the jury, as requested by him, that the plaintiff could not recover. After an attentive examination of the record, we are satisfied that this point is not well taken. In addition to the facts above stated, the evidence tended to show that the woman, Lillie O'Donnell, was the keeper of a house of prostitution; that there was a mortgage upon some furniture belonging to her, held by one Evans; that she bought of the plaintiff an additional quantity of furniture upon an agreement that the plaintiff should take up the Evans mortgage, and that she should give a new mortgage covering the furniture mentioned in the Evans mortgage and the furniture now sold to her, to secure certain notes therein named; that the furniture which the plaintiff sold to her was to be delivered at two different houses which she kept, one on the corner of Sixth and Elm streets, and the other on the corner of Seventh street and Clark avenue; that, when the mortgage was drawn up and acknowledged by her before the notary, she could not recall the number of the house at the corner of Seventh and Clark avenue, and that accordingly a blank space was left for the insertion of this number, with the understanding that it should be inserted as soon as she should return and report it to the plaintiff; that the plaintiff, desiring to protect his rights, sent the mortgage immediately to the recorder's office to be put upon record, without waiting for this blank space to be filled; that, after the mortgage had been recorded, he procured it from the recorder's office, and on the following day, the woman O'Donnell reported to him the description of the house on the corner of Seventh and Clark avenue, and he entered it according to her description in the blank space which had been left for that purpose; and that he sent the mortgage back to be again recorded, without having another acknowledgement taken. The furniture covered by the mortgage was described, and no change, whatever, was made in that. Subsequently, from time to time, Mrs. O'Donnell paid many of the notes secured by the mortgage, and never made any suggestion or complaint concerning the alteration of the mortgage, nor was any heard of by the plaintiff until Mrs. O'Donnell had made default in the payment of the remaining notes, and the Staley House Furnishing Company, which had become the proprietor of the...