Stewart v. Cooley

• Decision Date: 09 February 1877
• Citation: 23 Minn. 347
• Parties: LEVI M. STEWART <I>vs.</I> GROVE B. COOLEY, impleaded, etc.
• Court: Minnesota Supreme Court

23 Minn. 347

LEVI M. STEWARTvs.

GROVE B. COOLEY, impleaded, etc.

Supreme Court of Minnesota.

February 9, 1877.

This action was brought in the court of common pleas of Hennepin county, against the defendant Cooley, judge of the municipal court of the city of Minneapolis, the defendant Davenport, clerk of that court, and others. In his complaint, the plaintiff, after stating that he is an attorney-at-law, etc., and has always borne a good reputation, etc., alleges that the defendants, contriving and maliciously intending to injure him, etc., on October 7, 1875, at the city of Minneapolis, "wilfully and maliciously conspired together to cause said plaintiff to be charged with, complained of, and arrested and imprisoned for, the crime of perjury, as hereinafter set forth." The complaint then alleges that, at the time and place before mentioned, the defendant Nash went before the defendants Cooley and Davenport, the judge and clerk of said municipal court, and subscribed and swore to a complaint, in writing, which is set forth in hæc verba, and charges plaintiff with perjury in an affidavit for an attachment in a suit by one Bogardus against defendant Nash; that thereupon the defendants Cooley and Davenport issued the warrant of the said court for plaintiff's arrest on the charge of perjury contained in the complaint; that on the same day the plaintiff was arrested upon said warrant, and taken before said court for examination, when plaintiff moved that he be discharged and the complaint dismissed, because said complaint failed to state a cause of action; that thereupon the court, having heard the motion, adjourned the examination until the next day, and on the next day the defendant Cooley, municipal judge, denied the motion, and again adjourned the examination until the day following, at which adjourned day the plaintiff was present before said court, ready for examination on the charge contained in said complaint against him; that at said time and place the defendant Nash was not present, but refrained from being present, and the defendants Cooley and Davenport, judge and clerk as aforesaid, refrained from taking any steps or process to procure the attendance of said Nash; that thereupon, at said time and place, the defendant Cooley, as municipal judge, discharged the plaintiff from arrest, and dismissed the complaint, on the ground of the failure of Nash, the complaining witness, to appear; that the other defendants, being attorneys-at-law, counselled, aided, abetted, and procured the committing of the several acts and grievances aforesaid, each and every of which said acts of the defendants, and each of them, were malicious, and without probable cause; that plaintiff has been damaged thereby to the amount of $10,000, for which sum he asks judgment. To this complaint the defendant Cooley demurred. The demurrer was sustained by Young, J., and plaintiff appealed.

D. A. Secombe, for appellant.

Lochren, McNair & Gilfillan, for respondent.

CORNELL, J.

Eliminating from the complaint the averments "that defendants, on, etc., at, etc., wilfully and maliciously conspired together to cause the said plaintiff to be charged with, complained of, and arrested and imprisoned for, the crime of perjury, as hereinafter set forth, and that, in pursuance of the said conspiracy," the thereinafter recited acts were done, we find no difficulty whatever in agreeing with...