Wakely v. Johnson

• Decision Date: 15 December 1897
• Court: Michigan Supreme Court
• Parties: WAKELY v. JOHNSON.

73 N.W. 238

115 Mich. 285

WAKELY v. JOHNSON.

Supreme Court of Michigan

December 15, 1897

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by Hudson J. Wakely against Ernest W. Johnson. Plaintiff recovered verdict and judgment in an action for malicious prosecution. He was arrested upon a criminal warrant issued under a complaint made by the defendant charging him with obtaining money by false pretenses. The undisputed facts appear to be that plaintiff, in January, 1894, borrowed of defendant $35, for which he gave his promissory note. In April following he applied to defendant to borrow more money and represented that he was the owner of certain personal property, which he enumerated, and offered to secure defendant by a chattel mortgage upon it. Relying upon these representations, defendant loaned him $80 more, and took a chattel mortgage for $115. Subsequently plaintiff desired a further loan. Plaintiff again represented that he owned the property, and defendant insisted upon a written statement from his wife that she owned no interest in the property. A new mortgage was drawn, executed by plaintiff, with the indorsement upon it, purporting to be signed by his wife, in which she covenanted and agreed that she held no interest in the property. Plaintiff did not own the property, and his wife's signature was a forgery. Defendant made a full statement of the facts to his own attorney, who advised him that the plaintiff was guilty of a crime, and to lay the matter before the prosecuting attorney. Defendant went to the office of the prosecuting attorney, and stated his case to the assistant prosecuting attorney, who drew the complaint. The case was dismissed in the justice court, by the direction of the prosecuting attorney, because of defects in the complaint. The defendant, his own attorney, and the prosecuting attorney testified that all the material representations and facts were stated by the plaintiff. The assistant prosecuting attorney alone was responsible for the defects in the complaint. He testified that he acted upon his own responsibility in commencing the prosecution. There was no testimony whatever to contradict the statements of these witnesses. Defendant brings error. Reversed.

Frank G. Holmes, for appellant.

D. E Corbett, for appellee.

GRANT J. (after stating the facts).

Under this record there is no evidence to sustain the verdict. The defendant had done all...