Thomas v. Frost

• Decision Date: 04 December 1933
• Docket Number: 4777
• Citation: 27 P.2d 459,83 Utah 207
• Court: Utah Supreme Court
• Parties: THOMAS v. FROST

27 P.2d 459

83 Utah 207

THOMAS v. FROST

No. 4777

Supreme Court of Utah

December 4, 1933

Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.

Action by Thomas Thomas against Edward S. Frost, Sr. From a judgment for plaintiff, defendant appeals, and from an order striking from plaintiff's cross-bill a certain sum representing witness fees, plaintiff cross-appeals.

JUDGMENT REVERSED, AND CAUSE REMANDED FOR A NEW TRIAL.

Le Roy B. Young, of Ogden, and B. C. Call, of Brigham, for appellant.

R. L Hedrick and E. M. Dunn, both of Salt Lake City, for respondent.

FOLLAND J. STRAUP, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

FOLLAND, J.

Plaintiff, in his complaint, alleged that defendant maliciously and without probable cause charged him with having committed perjury during the trial of an action in the district court of Box Elder county, Utah, whereupon a warrant was issued for his arrest, and he was arrested, kept in custody for one day, and obliged to give bail in the sum of $ 1,000; that on the preliminary examination before the committing magistrate he was "fully acquitted" and discharged, and prayed for damages in the sum of $ 50,852.

Defendant, in his answer, admitted that he charged the plaintiff with perjury as alleged, but denied that he did so with malice or without probable cause; admitted that a preliminary examination was held as alleged, and in effect that plaintiff was discharged by the committing magistrate.

The case was tried to a jury in the district court. A verdict was rendered against defendant for $ 700 and judgment was entered for that sum and for costs. Motion for new trial was denied, and defendant appealed. After judgment plaintiff duly served and filed a memorandum of costs and disbursements. The defendant moved to have the costs taxed by the court. The court, on the hearing of the motion to retax costs, struck from plaintiff's cost bill the sum of $ 100, representing witness fees for certain witnesses. From this order plaintiff cross-appealed.

In order to understand the matter before the court, the following facts, shown by the record, must be kept in mind:

In October, 1924, there was being, tried in the district court of the First judicial district of Utah, at Brigham City, a certain cause wherein the present plaintiff and others were plaintiffs and Edward D. Frost, Sr., the defendant herein, was defendant. That action involved Frost's right to the use of winter waters of Grouse creek in Box Elder county. East Grouse Creek Water Co. v. Frost, 66 Utah 587, 245 P. 338.

During the course of that trial it became material and important to know whether Thomas Thomas had signed and acknowledged before Phillip Paskett, a notary public, a certain affidavit protesting the application of one C. C. Toyne to appropriate waters from Grouse creek, which affidavit had been filed with the state engineer, and during the course of the proceedings before the state engineer an affidavit protesting the application had been field; said affidavit having been signed by Edward S. Frost, Sr., the defendant herein, and by others, and also purporting to have been signed by Thomas Thomas, the plaintiff herein. If it were true that Thomas had actually signed that affidavit before Phillip Paskett, the notary public, then it became highly important to Frost to prove that fact, because in the affidavit the signers stated that "all of said waters (referring to Grouse creek) for many years, to wit, more than 20, has been appropriated and used by David P. Thomas and E. S. Frost from the first day of October to the first day of June of each and every year the said water being used in irrigating meadows and lucern lands during said time."

As the right of Frost to use the winter waters was then being questioned by Thomas and others in said action, it was proper and material for Frost to show that Thomas had theretofore stated under oath that Frost and another had prior to 1910 appropriated and used the water. Thomas was called as a witness in that trial, and on cross-examination was asked if he had signed such an affidavit. He denied having signed it. The state engineer brought into court the original affidavit. Being confronted with the original affidavit and being asked if he had signed it, Thomas again, under oath, denied having signed it.

Thereupon the appellant herein went to the county attorney of Box Elder county and suggested to him that Thomas had committed perjury in so denying the signing of said affidavit. Mr. Frost stated to the county attorney that he knew Thomas had signed the affidavit because he had seen him sign it. The county attorney told him that perjury "was rather a complicated crime" and he wanted to go into the matter thoroughly, particularly with reference to the question of the materiality of the questions asked, because, as he stated, "perjury must have been false swearing of facts, which were known to be false and which were material to the issue." He told Mr. Frost that he would investigate the matter. He discussed the question of materiality with Mr. Call, Frost's attorney, and then went to Salt Lake City to examine the original affidavit, taking with him genuine signatures of Mr. Thomas. He went to the office of the state engineer, accompanied by a person expert in handwriting, and together they inspected the affidavit on file and compared the purported signature with the undoubted signatures of Thomas. He became satisfied from such examination and comparison that Thomas has signed the affidavit. Having reached the conclusion that the testimony was material and that it was false, the county attorney issued a complaint, and Mr. Frost signed it. It was filed in the city court of Brigham City, and the judge thereof issued a warrant for the arrest of Mr. Thomas. By virtue of this warrant he was arrested.

The county attorney, in preparing for the preliminary examination, caused Phillip Paskett to be subpoenaed as a witness for the state, and talked to him prior to the hearing. He told him he wanted to know the facts, that he did want to tell him what he was to testify to, but wanted to know what he would testify to so that he could intelligently examine him. Paskett persisted in saying, however, that he had some "reasons" for not telling him, which he did not like to discuss with the attorney, and that he would tell his story when he got on the witness stand, and asked that the county attorney refrain from questioning him until on the witness stand. The county attorney was obliged to wait until Paskett testified before he knew what his testimony would disclose.

It appears that during the course of the water trial in the district court, after Thomas had denied that he had signed the affidavit, Paskett was called as a witness for Frost and was asked if the signature at the bottom of the affidavit was his, and if he had placed his notarial seal thereon, to which questions he answered in the affirmative. Apparently the attorney did not deem it necessary to ask Paskett the simple question as to whether Thomas had actually appeared before him and signed the affidavit. When Paskett was placed on the stand as a witness for the state in the preliminary examination, he stated under oath that Mr. Thomas did not sign the affidavit, but that he (Paskett) had signed the name of Thomas Thomas at the request of Mr. Frost, who, he said, brought the affidavit to him and stated that Mr. Thomas had seen and read the affidavit and had requested him to present it to Paskett and have Paskett sign his (Thomas') name thereto; and that a son of Frost had produced a piece of paper containing what purported to be a genuine signature of Thomas and that Frost asked him to copy it on the affidavit, and that thereupon he "traced" Thomas' name on the affidavit. Frost, of course, denied this testimony and testified that Thomas had signed the affidavit before the notary public in his presence and in the presence of others. Paskett and Frost each testified to substantiate the same facts in the instant case as they had testified before in the preliminary examination with respect to the circumstances attending the signing of the name of Thomas Thomas to the affidavit. The state, at the preliminary examination, produced two handwriting experts who testified that the signature on the affidavit was the genuine signature of Thomas. The city court, at the conclusion of the preliminary examination, discharged the defendant. Thereupon Thomas commenced this action to recover from Frost damages for the malicious prosecution of the perjury charge.

The appellant has assigned thirty errors. Some of them are not argued at all in the brief, and hence are deemed waived; others are argued so inadequately that rule 10 of this court is violated, and so they will not be considered. We will state, however, that notwithstanding we do not incumber this opinion with a consideration of some of the assigned errors, we have given them careful attention, and think there is no merit in them.

More than one-half of appellant's brief is devoted to a discussion of the question as to whether the evidence shows there was probable cause for appellant to charge respondent with perjury, and as to whether the evidence shows that appellant was actuated by malice in so doing; the contention being that in order to warrant the plaintiff to recover damages he must show affirmatively that there was malice as well as want of probable cause. Counsel is right in this contention, the law being too well settled to permit any doubt on that question.

The important question the court and jury had to consider was whether or not the defendant, in causing a complaint to be issued charging plaintiff with...