Stoddard v. Roland

• Decision Date: 16 July 1889
• Citation: 9 S.E. 1027,31 S.C. 342
• Parties: STODDARD v. ROLAND.
• Court: South Carolina Supreme Court

9 S.E. 1027

31 S.C. 342

STODDARD v. ROLAND.

Supreme Court of South Carolina

July 16, 1889

Appeal from common pleas circuit court of Laurens county; KERSHAW Judge.

McIVER J.

The plaintiff brought an action for malicious prosecution against defendant, and at the close of the testimony adduced on the part of the plaintiff a nonsuit was moved for and granted upon the ground that the plaintiff had failed to introduce any testimony whatever tending to show a want of probable cause for the prosecution. The sole question raised by the appeal is whether there was any error in granting the nonsuit; though the defendant has, according to the proper practice, given notice that he will endeavor to sustain the judgment below upon another ground, to-wit, that there was no evidence tending to show that the prosecution was ended when this action was commenced. There can be no doubt that, in order to maintain an action for malicious prosecution, it is incumbent upon the plaintiff to show three things: (1) That there was no probable cause for the prosecution; (2) that it was malicious; and (3) that it was ended before the action was commenced. There is little doubt, under the well-settled rule as to nonsuits, that if the plaintiff fails to offer any evidence tending to show either one of these essential facts a nonsuit is proper; otherwise it is not. So that the practical question raised by the plaintiff's appeal is whether he offered any evidence tending to show a want of probable cause for the prosecution. We have carefully examined the voluminous evidence set out in the "case," and we agree fully with the circuit judge that there was not a particle of testimony even tending to show a want of probable cause for the prosecution. On the contrary, the testimony of the plaintiff himself abundantly shows that he had violated the statute under which he was prosecuted, and we are unable to find a single fact or circumstance in his testimony, or in that of any of his witnesses, tending to show any want of probable cause for the prosecution. To make this plain, a brief statement of the origin and history of the controversy between these parties derived solely from the plaintiff's own testimony and the papers introduced, will be made. On the 31st of January 1888, the defendant took out a warrant from a trial justice against the plaintiff, for a violation of section 2515 of General Statutes by selling a mule upon which defendant held a mortgage, without the written consent of the mortgagee. On the next day the plaintiff, having heard of the warrant, voluntarily appeared at the office of the trial justice, and entered into recognizance to appear before the trial justice on the 8th of February, 1888. In the mean time, however, the parties met, and had a settlement, in which it was ascertained that the mortgage debt had then been overpaid a few dollars, and the excess was refunded to the plaintiff, and the prosecution was "withdrawn by prosecutor," the defendant herein. It appeared, however, that when the mule covered by the mortgage was sold, or rather exchanged for another animal, there was then a balance still due on the mortgage debt, though there had been a...