Webb v. Wegley

• Decision Date: 03 March 1910
• Citation: 125 N.W. 562,19 N.D. 606
• Parties: OCER WEBB v. JOSEPH WEGLEY
• Court: North Dakota Supreme Court

125 N.W. 562

19 N.D. 606

OCER WEBB v. JOSEPH WEGLEY

Supreme Court of North Dakota

March 3, 1910

Appeal from District Court, Williams County; Goss, J.

Action by Ocer Webb against Joseph Wegley. Judgment for defendant and plaintiff appeals.

Modified and affirmed.

Judgment affirmed. No costs allowed to either party.

Aaron J. Bessie (Chas. E. Wolfe, of counsel), for Appellant.

Engerud Holt & Frame, for Respondent.

OPINION

FISK, J.

The complaint in this action alleges two causes of action; the first for damages for malicious prosecution, and the second for damages for false imprisonment. By his original answer defendant admitted the first four paragraphs of plaintiff's first cause of action, wherein it is alleged in substance that defendant, at the times mentioned, was mayor of the city of Williston, and that in February, 1907, one Smith, acting chief police of such city, at the instigation, advice, and request of defendant, instituted proceedings before the police magistrate, charging plaintiff with the crime of gambling, and also keeping a place for gambling, in violation of the city ordinance, and pursuant to such proceedings plaintiff was arrested on such charges, but that subsequently the same were dismissed, and defendant discharged. Also that at said time the defendant appeared before such magistrate charging plaintiff with the crime of perjury; that a warrant was issued, and plaintiff arrested on such charge and imprisoned for 17 days in the county jail, but that subsequently plaintiff was discharged through habeas corpus proceedings, and such criminal action in all things fully terminated. The remaining allegations of such first cause of action, wherein it is alleged that such criminal proceedings were malicious and instituted without probable cause, and alleging special, as well as general, damages, were expressly denied by such answer, and certain matters, not necessary here to state, are alleged by way of defense to such first cause of action. As to the second cause of action defendant expressly admitted all the allegations thereof, except those relating to damages, which latter allegations were denied. After the jury was impaneled plaintiff moved for judgment on the pleadings as to the false imprisonment charge, asking that the jury be required merely to assess plaintiff's damages. Such motion was denied tentatively, subject to renewal. Thereafter and before any evidence was offered defendant asked leave to serve and file an amended answer changing the issues relative to the falsity of the arrest declared upon. Such amended answer was allowed over objection and exception. Thereafter plaintiff moved for a continuance of the cause over the term, basing his motion upon the ground of the absence of a material witness, one Roberts, and at the suggestion and request of the court plaintiff prepared and furnished an affidavit setting forth reasons why plaintiff deemed a continuance necessary. Such affidavit stated that such witness was in the city of Spokane, and that his testimony could not be procured in time for trial at that term. Such affidavit also sets forth the facts which it is claimed such witness would testify to if present, and without setting forth such facts it is sufficient to say that they are material and relevant to the new issues under the amended answer. The affidavit also states that such matters could not be proved by any other witness. Thereafter defendant was permitted, over objection, to read certain counter affidavits bearing upon the good faith of plaintiff's application for continuance. Such affidavits are as follows, omitting the formal parts:

"Edwin A. Palmer, being first duly sworn, says that he is one of the attorneys for the defendant in the above-entitled action; that on the 17th day of June, 1907, one John W. Roberts appeared before this affiant at Williston, in said county, and voluntarily made, signed, and swore to the annexed affidavit, which is marked 'Exhibit A' and made a part of this affidavit; that said John W. Roberts was a colored man, commonly known as Bob Roberts in the plaintiff's affidavit for a continuance here; that heretofore, and on or about the 17th day of June, 1907, affiant caused a subpoena to be issued for said Roberts in the above-entitled action as a witness therein, on the part of the defendant; that said subpoena was served upon said Roberts on or about said 17th day of June; that thereafter said Roberts remained in attendance upon this court pursuant to said subpoena for several days, and he then disappeared and neither this affiant nor the defendant, nor any of the attorneys connected with the defense herein, has been able to ascertain the whereabouts of said Roberts until the plaintiff's affidavit for continuance was served upon defendant's attorneys. Edwin A. Palmer.

"Exhibit A: John W. Roberts, being first duly sworn on his oath, says that he is the identical person who, on or about the month of February, 1907, when the Ocer Webb joint was raided and Webb was arrested on a charge of gambling, and who at that time was playing poker with said Webb and others. That on the afternoon of June 17, 1907, the said Ocer Webb, the plaintiff in the action of Ocer Webb v. Jos. Wegley, told affiant that Aaron J. Bessie, his attorney, would pay to the said affiant the sum of $ 45, and give him a new suit of clothes and buy him a ticket out of the city, if affiant would leave the city at once and not return until after the trial of the case of Ocer Webb v. Jos Wegley, and that this conversation occurred just outside the door of Jack Tolliver's blacksmith shop, and that Jack Tolliver was just inside at the time, and told affiant not to do that but to stick. That affiant further was told by the said Ocer Webb, the same as above, at the house of Webb, while they were drinking a glass of beer, that Webb set up the beer, and that affiant then bought some whisky from the said Webb and paid him 25 cents per drink; that affiant bought four drinks, one for Cy Mathews, one for Al Maderson, one for a fellow that goes by the name of Curley, and one for a man who was a stranger. Then Cy Mathews bought two bottles of beer from the said Webb, and then Al Maderson bought two bottles from the said Webb. That there were others who bought beer at that time from the said Webb, but affiant does not know their names. That the above facts were voluntarily given. John W. Roberts.

"Geo. A. Gilmore, being first duly sworn on his oath, deposes and says: That he was present at all the times referred to in the preceding affidavit of Edwin A. Palmer, and that he has read the foregoing affidavit of Edwin A. Palmer, and that he has read the foregoing affidavit and understands the contents thereof, and that the same is true of his own knowledge. George A. Gilmore."

Upon such showing a continuance was denied, and counsel directed to proceed with...