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iliat the cause of action was barred by the statute of limitations. The demurrer was overruled. The defendant answered, denying all the material allegations of the complaint, and pleading the statute of limitations and counterclaims-one on a note of $55, executed by plaintiff to the defendant, which, it was alleged, remained unpaid, and upon which judgment was demanded for $81; one on a note for $23.44, executed by plaintiff to the defendant, upon which judgment was demanded for $34.79; and one for $300 for services rendered and performed by the defendant for the plaintiff as an attorney, and for costs paid out by him on her behalf. The plaintiff replied, denying the allegations of the counterclaims. Upon these issues the case was tried before Hon. Charles H. Hart, judge of the First judicial district court in and for the county of Box Elder, and after the taking of evidence on behalf of both parties for four or five days the court, on the 20th day of November, 1903, made a finding that a trust relation existed between the plaintiff and the defendant, and that in accordance therewith the defendant came into possession of certain funds of the plaintiff, with respect to which she was entitled to an accounting, and thereupon the court ordered that the defendant make an accounting of the funds so received by him before the court on the 8th day of December, 1903. Upon objection made by the defendant to Judge Hart's further proceeding with the case, and upon defendant's request that the case be concluded before another judge, Hon. John E. Booth, judge of the Fourth judicial district, was authorized to further try the case, commencing on the 29th day of December, 1904. On that day the case was regularly (alled before Judge Booth. The defendant failed and refused to make an accounting, or otherwise to comply with the order of the court made on the 20th day of November, 1903, and objected to any further proceedings being bad in the case, claiming that the court had no authority to make the order, and that the court had lost jurisdiction of the case. These objections were all overruled. Plaintiff's counsel then demanded that judgment by default (because of the defendant's failure to comply with the order) be entered against him for the sum of $3,202, which sum, it was claimed, the defendant admitted to have been received by him, as evidenced by a statement furnished by him to the plaintiff, which statement was attached to the complaint and made a part thereof. The default was so entered. The defendant having declined and refused to make an accounting or to comply with the order, Judge Booth thereupon made findings reciting the order theretofore made by Judge Hart, the defendant's refusal to comply therewith, and the entering of the default, and without hearing further evidence found

that the defendant, on or about the 1st day of January, 1889, received from the plaintiff moneys and notes in the sum of $3,012.EO, which the defendant had agreed to lend and collect for the use and benefit of the plaintiff, and to pay the principal and interest to her from time to time on her demand; that in June, 1896, the defendant rendered plaintiff a statement showing that the defendant held $3,202 belonging to the plaintiff; and that on or about June, 1897, the defendant paid to the plaintiff the sum of $100, interest money, but since the date last aforesaid the defendant had not paid anything to the plaintiff, and had failed and refused to account to her, although often requested so to do. As conclusions of law the court found that the plaintiff was entitled to a judgment against the defendant for the sum of $3,202, less the payment of $100, together with interest at 8 per cent. per annum from 1896. Judg. ment was entered accordingly, from which the defendant has prosecuted this appeal.

We are asked to dismiss the appeal because not taken in time. The findings were made and filed, and judgment was entered thereon, on the 29th day of December, 1904. On the 16th day of January, 1905, defendant served and filed his motion for a new trial. This motion was overruled on the 20th day of June, 1906. We have repeatedly held that that in this state an appeal lies only from the judgment, and not from an order denying or granting a new trial; that the judgment is not final while a motion for a new trial, made within the time allowed by law, is pending and undisposed of; and that an appeal may be taken within six months from the overruling of the motion for a new trial. If appellant has filed his motion for a new trial within the time allowed by law, his appeal is within time; otherwise, it is not. The statute provides (section 3294, Rev. St. 1898) that a party intending to move for a new trial must, within five days after the verdict of the jury, or after notice of the decision of the court or referee, if the action were tried without a jury, serve and file a notice of such intention. In this case the motion for the new trial was not served nor filed until 19 days after the findings were filed and judgment was entered. The material question here is: When did the fiveday period begin to run? The statute provides that the party intending to move for a new trial must within five days after notice of the decision of the court or referee, if the action were tried without a jury, file and serve his notice of intention. Section 3330 of the statute provides that all notices must be in writing. It is not made to appear of record that any written notice was served upon the defendant of the decision of the court. The contention made by the appellant is that the five days did not begin to run until such a notice was served upon

him or his counsel, and, as no written notice not necessary to be done until after the nowas served of the decision, the motion for a


L'nder the authorities, we are connew trial was made within time. Ou the t'on- strained to hold that the motion for a new trary, it is urged by respondent that the irial was filed within time; and, as the apbill of exceptions prepared by the appellant peal was taken within six months from the shows that on the 29th day of December, time of the overruling of the motion, it folwhen the findings were presented to the lows that the appeal was taken within time. court, and before they were signed and filed, The motion to dismiss the appeal must therethe defendant was possessed of the proposed fore be denied, findings, and objected to the court's making The appellant urges that the court erred findings upon the ground that the court was (1) in overruling the demurrer; (2) in making without authority to do so; that Judge Ilart, the order requiring him to account; (3) that and not Judge Booth, heard the evidence, the court presided over by Judge Booth was and that the latter heard no evidence upon not authorized to make findings, because the which the alleged findings of fact could be evidence with respect thereto was not heard based; that the findings were not warranted by him, but was heard by Judge Hart; and nor supported by the pleadings; that the ap- (1) that the court failed to find upon the ispellant then and there made various other sules tendered by the counterclaims. We specific objections to each of the proposed think the demurrer was properly overruled. findings of fact, and likewise, for the same With respect to the second assignment the and additional reasons, the appellant object- appellant has not made to appear wherein ed to the court's signing the decree as pro- the court erred in ordering him to make an posed by respondent; that the court then

accounting. The evidence which the court, and there overruled all of appellant's ob- presided over by Judge Hart, received and jections, to each of which rulings the appel- heard on behalf of both parties, lasting some lant then and there excepted; that the court four or five days, is not before us. Whether then and there, and on the same day, signed the court was or was not justified in making and filed the findings and decree as proposed such an order must largely depend upon the by the respondent; and that because of such evidence. We can perceive of some phases proceedings, and of appellant's participation of the case where such an order might be therein, the respondent was not required to made with propriety. Nothing having been serve a written notice of the decision in or- made to appear to the contrary, we must preder to start the running of the five-day sume that the order was properly made. Beperiod. There is much force to the position cause the defendant failed to comply with taken by counsel for respondent, and, were the order, the court, however, was not justithe question an open one in this jurisdiction, tied in treating such failure and refusal as we would be inclined to hold with him. But a confession of the plaintiff's demand, and in the case of Burlock v. Shupe, 5 Utah, +29, entering a judgment against him for such an 17 l'ac. 19, followed and approved in Mer- amount, in the face of his general denial and cantile Co. v. Glen, 6 Utah, 139, 21 Pac. J00, of his counterclaims. 1 Cyc. 113; Lee v. and in the case of Biagi v. Howes, C6 Cal. Abrams, 12 Ill. 111; Bishop v. Baldwin, 14 469), 6 Pac. 100, a contrary doctrine seems to Vt. 17.). But the court did not enter the have been held. There, in effect, it was held judgment simply because the defendant failthat, under statutes identical with those here

ell and refused to comply with the order. in question, a party intending to move has The judgment of the court was also based a right to wait for a notice in writing of upon the findings of fact as found and filed the decision from the adverse party before ly the court, and as hereinbefore set forth. giving notice of intention to move for a new Had the court found upon all the material trial, and that he is entitled to such notice issues raisel by the pleadings, we would, on of the decision before he is called upon to this record, affirm this judgment. We think act, although he was present in court when that the court presided over by Judge Booth the decision was rendered, and waived find- Was autliorized to make findings upon the ings, and asked for a stay of proceedings whole case. But assignment No. 4 must be on the judgment, and applied to the court sustained. It was the duty of the court for an extension of time in which to give to find upon all the material issues, innotice of his intention to move for a new cluding those raised by the counterclaims, trial. It is there said that such a rule is regardless of the insufficiency of evidence to more certain and definite, prevents contro- support them, or even though no evidence versies which under any other construction in their support was introduced. If the eviwould be likely to a rise, and accords with dence was insufficient, or if there was no

evident intention expressed in the statute. evidence in their support, the findings of Undoubtedly the serving of the written no- fact with respect thereto should have been tice may be waived. But, als pointed out in against the defendant, for on him was the the case of Burlock v. Shupe, supra, to con- burden of proof on such issues. With restitute a waiver, "the party must do some spect to these issues the findings are silent, affirmative act pointed out in the statute as and until they are disposed of no judgment could be properly pronounced. Dillon Imp. This is an action for malicious prosecuCo. v. Cleaveland (Utah) 88 Pac. 670. For


On March 27, 1906, defendant caused this reason the judgment must be vacated, plaintiff to be arrested at Canyon City, Grant and the cause remanded. We, however, are

county, on a warrant issued by a justice of not disposed to grant a new trial.

the peace, based on an information sworn to The case is reminded to tlie trial court, hoy defendant. charging plaintiff with having with directions to set aside the findings and obtained from defendant on March 9, 1900, judgment, to make new and complete find

the sum of $37.50, under false pretenses. ings upon all the issues presented by the

By reason thereof, plaintiff was confined in dleadings, and to enter judgment accordingly.

the county jail for 11 days. On May 21, This order is made pursuant to chapter 161,

1906, at the regular term of the circuit court p. 260, Sess. Laws 1907, passed since the

for that county, the prosecuting attorney decision of Dillon Imp. Co. v. Cleaveland,

returned into court an information indorsed supra. Neither party to have costs.

“not a true bill,” and thereupon plaintiff

was discharged. In addition to the foregoing MCCARTY, C. J., and FRICK, J., concur.

facts, plaintiff alleges that the prosecution was without probable cause and was actuated

by malice, concluding with proper and usual (50 (r. 210)

allegations of damages. By his amended anPITXAM Y. STALKER.

swer, defendant, by general denial, travers(Supreme Court of Oregon. July 30, 1907.)

es the whole complaint, and, as a further de

fense, alleges the facts on which the charge 1. TRIAL-NONSUIT-DETERMIXATION.

Was basel; that, after making an investigalOn a motion for a nonsuit, every intenolment and fair and legitimate inference which tion of all the circumstances, he submitted can arise from the evidence must be made in all the facts within his knowledge, through favor of plaintiff, and the court must assume

his attorney, to the deputy district attorney those facts ils true which the jury might properly find under the evidence.

: for that county, who advised defendant that [Ed. Yote.-For cases in point, see ('ent. Dig.

there was probable cause for prosecuting vol. 46, Trial, $ 5573.)

plaintiff, and requested defendant to make 2. MALICIOUS PROSECUTION-ACTIONS - I'RE

and file the information on which the warSUMPTIONS AND BURDEN OF PROOF.

rant was issued; that acting in good faith, That plaintiff, in an action for malicious

and relying upon the advice of the deputy prosecution, was held by the magistrate on his preliminary examination, wherein witnesses

district attorney, he made the information; were examir.ed, both on behalf of the state and that on April 25, 1906, a legal preliminary plaintiff, to answer at the next term of the cir- examination of the charge against plaintiff cuit court, affords a prima facie case of probable cause; such prima facie case being subject

was had before the magistrate, at which to overthrow by evidence that his binding over evidence was introduced and witnesses were was procured by fraud or other improper means.

sworn and examined, both on behalf of the [Ed. Note.-For cases in point, see Cent. Dig.

state, represented by the deputy district atvol. 33, Malicious Prosecution, $ 54.]

torney, and on behalf of defendant in said 3. SAME-EVIDENCE-SUFFICIENCY. Evidence, in an action for malicious prose

cause, who appeared in person and by his ('ution, examined, and held to establish that de- attorney, and, after a full and fair hearing fendant in making the charge complained of act- of the cause, plaintiff herein was held by the ed in good faith, relying on the advice of the prosecuting attorney, who had previously been

magistrate to await the action of the grand fully and fairly advised of all the facts within

jury at the next term of circuit court, and defendant's knowledge.

was admitted to hail in the sum of $250, [Ed. Note.-For cases in point, see Cent. Dig. and, being unable to give the same, he was vol. 33, Malicious Prosecution, 8 132.)

committed to the custody of the sheriff of 4. SAME-WANT OF PROBABLE CAUSE-ADVICE the county; that these acts of the defendant OF PROSECUTING OFFICER.

are the same acts stated in the complaint; Where one before the commencement of a criminal prosecution in good faith discloses to

and that the charges preferred were true. the prosecuting attorney all the facts within his By the reply there was a general denial of knowledge, or which he has reasonable ground the new matter of the answer. The cause to believe, relating to the offense, and is advised

was tried before a jury, and at the close to institute the prosecution, he is not liable as having acted without probable cause, though of plaintiff's case defendant moved for a there were other exculpatory facts which he nonsuit, which was overruled by the court. might have ascertained by diligent inquiry.

He also requested of the court an instruc[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Malcious Prosecution, $$ 45, 46.]

tion for a verdict in his behalf, based upon

a claim that he had established by unconAppeal from Circuit Court, Grant County; troverted and competent evidence the deGeorge E. Davis, Judge.

fense that the prosecution was upon the adAction by H. X. Putnam against J. L. vice and direction of the prosecuting attorStalker. From a judgment for plaintiff, de- ney, which requested instruction was denied. fendant appeals. Reversed and remanded. The verdict was for plaintiff in the sum of $120, on which judgment was accordingly of the sheriff of the county. But it further entered, and from which defendant appeals. shows that on April 25, 1906, a preliminary Error is assigned upon the overruling of the hearing was had before the magistrate upon motion for nonsuit and the refusal of the the charge, and after an examination duly court to instruct the jury as requested by held according to law, at which the state the defendant, as well as upon admission of appeared by the deputy prosecuting attorney testimony objected to by defendant.

for that county, and the plaintiff appeared in

person and by his attorney, and after three Errett Flicks, for appellant. V. G. Cozad, witnesses has been examined on behalf of the for respondent.

state, and two on behalf of plaintiff, includ

ing himself, he was held to answer at the SLATER, C. (after stating the facts). By

next term of the circuit court for that counhis motion for nonsuit, defendant invoked

ty, and was admitted to bail in the sum of the ruling of the court on the legal effect of

$250. This evidence, instead of showing the the evidence of plaintiff to support his cause

want of probable cause, the burden of showof action. Upon such motion every intend

ing which was upon plaintiff, makes, it would ment and every fair and legitimate infer

seem, a prima facie case of probable cause. ence which can arise from the evidence must

"It is quite generally held," says Mr. Justice be made in favor of plaintiff, and the court

Wolverton, in Stamper v. Raymond, 38 Or.

16, 62 Pac. 20, "that, where proof was offered must assume those facts as true which the

upon the examination which is deemed suffijury can properly find under the evidence. Wallace v. Railway Co., 26 Or. 174, 37 Pac.

cient by the committing magistrate upon 477, 25 L. R. A. 603. And if the evidence

which to commit, his commitment accordingly tends to show facts which will sustain the

will afford prima facie evidence of probable action, though remote, the motion for non- cause." The effect of the commitment ag suit should not be sustained. Ilerbert v.

evidence of probable cause, however, may be Dufur, 23 Or. 461, 32 Pac. 302. But if the

overthrown by other evidence showing that testimony offered by plaintiff tends to show

it was obtained by false pretenses or other that the defendant bad good reason to be

improper means. Sharpe V. Johnston, 76 lieve that the law had been violated, and he

Mo. 600; Giusti v Del Papa, 19 R. I. 338, acted in good faith, it is the duty of the

33 Atl. 525; Womack v. Circle, 29 Grat. (Va.) court to declare the legal effect of the evi

192. But, unless it is overthrown by testidence by allowing the motion for nonsuit.

mony of that character, it becomes conclu“The welfare of society," says Mr. Justice

sive, and must prevent the plaintiff from Bean, in Hess v. Baking Co., 31 Or. 513, 49

prevailing. We are unable, however, to disPac. 803, "imperatively demands that those

cover in the record any evidence on the part who violate the law shall be promptly and

of plaintiff tending to show, and in fact it speedily punished, and to accomplish that

does not seem to have been claimed by him,

that there was any fraud or other improper purpose the rule has been firmly established

conduct on part of this defendant at the prethat any citizen who has good reason to believe that the law has been violated may

liminary examination which prevented the

plaintiff from obtaining a full and fair hearcause the arrest of the supposed offender,

ing, or that the conclusion announced by the and, if in doing so he acts in good faith, the

magistrate was the result of any improper law will protect him against an action for

conduct of defendant; nor are we able to damages, although the accusation may in

find any evidence on part of defendant in fact be unfounded. This rule is founded on

this case, after his motion for nonsuit was grounds of public policy to encourage the

overruled, by which the prima facie case of exposure of crime, and the punishment of

a probable cause, made out by the cominitcriminals, and when, therefore, the act of a

ment, was overthrown. The court therefore citizen in thus enforcing the law is chal

erred in denying the motion. lenged, the court must determine the question

2. At the close of the testimony, defendant when the facts are admitted or established

by his counsel requested the court to instruct as to whether he had probable cause for so

the jury as follows: "The court instructs doing, and not leave it to the arbitrament

the jury that the fact is before you and is of a jury."

not disputed that, before the defendant beAt the outset of his case, plaintiff offered,

gan the criminal action described in the and there was received, the transcript of the

complaint in this case, he was advised by proceedings in the justice court, which con

J. E. Marks, deputy district attorney for tains the information sworn to by defendant

the Ninth judicial district of Oregon for before the magistrate on March 27, 1906,

Grant county, to institute the said criminal and the warrant issued thereon, and upon action, and that before receiving such adwhich plaintiff was arrested on the 27th day vice there had been laid before the said of March, 1906, and on the next day was deputy district attorney all the facts and circommitted by the magistrate to the custody | cumstances in the knowledge of the defend. ant relating to the charge against the plain- | arrested; but, fearing to act on such request tiff, and that the said deputy, district attor- without further information, Brown was adney also made an investigation of his own vised by Kircheiner to forward a warrant. motion of the charge against the plaintiff, On March 25th following, the sheriff of the and that after making such investigation, county received from Brown this telegram: and after receiving all such facts and cir- "Arrest H. N. Putnam claiming to be repcumstances, . advised the defendant to in- resentative of Bureau of National Literature stitute said criminal action, and that defend- and Art. Charge, collecting and retaining aut acted on such advice in good faith; and trust fund.” Plaintiff was arrested and takI instruct you as a matter of law that such

en into custody by the sheriff, acting upon tact constitutes probable cause for said crim- this order but without warrant; but he iminal action, and I instruct you to return a mediately advised Brown that he would not verdict for defendant." This requested in- hold plaintiff unless a proper warrant was struction was denied by the court, and, an

forthwith furnished, and on March 27th he exception to the ruling having been taken by received from Brown this message: "A. M. the defendant, error is assigned thereon. It

Kircheiner of Prairie City, Or., will make appears from the testimony that defendant,

charge against Putnam. If not, collect all soon after having given plaintiff the order

supplies belonging to Bureau of National for the books, and after having paid plain

Literature and Art and let go.” All of these tiff the sum of money charged to have been

matters were fully disclosed to the deputy obtained under false pretenses, became sus

district attorney by Kircheiner acting for picious of plaintiff's good faith and his right himself and for the defendant, and by R. R. to receive the money as an agent for the

McHaley. The deputy district attorney had proprietors of the work, and on that account

talked with both of these persons, and they defendant consulted with his attorney, A.

testified that they had fully and fairly disM. F. Kircheiner, in regard to the matter,

closed to him all of the facts within their giving him a full, fair, and correct state

knowledge regarding not only plaintiff's transment of all that had transpired between the parties. It transpired that this attorney and

actions with defendant, but also plaintiff's

dealings with them concerning the sale of R. R. McHaley, residents of that neighbor

books, and the evidence shows that the dehood, also had recently had transactions with

fendant had previously disclosed to Kirchplaintiff similar to those which had taken

einer and McHaley all of the material facts place between him and defendant, and on which the criminal information was based,

within his knowledge upon which the crimi

nal charged was afterwards based, and that and under the same circumstances. These three persons, after talking the whole matter

Kircheiner was acting as defendant's attorover among themselves, becoming convinced

ney and was advising him as to what he that they had been swindled, and that they

should do in the matter. The deputy aistrict would never be supplied with the books,

attorney also swears that he was made fuuv made an investigation to ascertain the cor

acquainted with all of the facts of the case rectness of the statements and representa

by McHaley and Kircheiner, and that he had tions made to each of them by plaintiff when

in fact been investigating appellant's contaking their orders and receiving their mon

duct for a month or six weeks previously, ey. To that end communications were ad

and was well advised concerning his transalressed to the Bureau of National Litera

actions, and based on such knowledge and ture and Art in Washington, D. C., plaintiff's

information he advised Kircheiner to have reputed principal, and to Mr. C. T. Brown,

his client, Stalker, the defendant, swear to general manager of the Washington Post at

the information, because he then believed Kansas City, Mo., wbich was, since June, 1905,

there was sufficient evidence to hold plainthe successor in interest to all of the propri

tiff. He preferred that Stalker should make etary rights in the sale and distribution of

the information, instead of either Kircheiner the books in question, formerly possessed by

or McHaley, because Putnam had admitted said bureau. On March 19, 1906, the Bureau

to McHaley that he had not forwarded Stalkof National Literature and Art, through E.

er's order, which fact made a stronger case M. Hunt, its assistant treasurer, replied that

against plaintiff, while they had no evidence Putnam had not been in its employ for a

as to whether plaintiff had forwarded Mclong time, and saying: “We have been en- Haley's or Kircheiner's orders and money. deavoring to ascertain his whereabouts. This testimony is corroborated by both Kirch* * * If Mr. Putnam is still in your locality

einer and Mcllaley. The latter testifies that we would thank you to advise our Mr. C. T. he expressed his willingness to make the Brown, C01 Century Building, Kansas City, information himself; but, the deputy district Jo., at his expense by wire. Mr. Putnam's attorney advising that Stalker had the work has been very irregular, and we intend stronger case, the latter was the proper perto put a stop to it. We should be pleased son to make the charge, and he was requestto receive this information if possible.” On ed to swear to the information. Defendant March 21, 1906, Kircheiner received a tele- swears that he was so advised and requested *aphic message from Brown to have Putnam by his attorney, and that relying upon the

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