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of January, 1889, received from the plain-
tiff moneys and notes in the sum of $3,042.80,
which the defendant had agreed to lend and
collect for the use and benefit of the plain-
tiff, and to pay the principal and interest to
her from time to time on her demand; that
in June, 1896, the defendant rendered plain-
tiff 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 plain-
tiff, 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.

that the cause of action was barred by the | that the defendant, on or about the 1st day 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 $500 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 called 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 had 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

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 was served of the decision, the motion for a new trial was made within time. On the contrary, it is urged by respondent that the bill of exceptions prepared by the appellant shows that on the 29th day of December, when the findings were presented to the court, and before they were signed and filed, the defendant was possessed of the proposed findings, and objected to the court's making findings upon the ground that the court was without authority to do so; that Judge Hart, and not Judge Booth, heard the evidence, and that the latter heard no evidence upon which the alleged findings of fact could be based; that the findings were not warranted nor supported by the pleadings; that the appellant then and there made various other specific objections to each of the proposed findings of fact, and likewise, for the same and additional reasons, the appellant objected to the court's signing the decree as proposed by respondent; that the court then and there overruled all of appellant's objections, to each of which rulings the appellant then and there excepted; that the court then and there, and on the same day, signed and filed the findings and decree as proposed by the respondent; and that because of such proceedings, and of appellant's participation therein, the respondent was not required to serve a written notice of the decision in order to start the running of the five-day period. There is much force to the position taken by counsel for respondent, and, were the question an open one in this jurisdiction, we would be inclined to hold with him. But in the case of Burlock v. Shupe, 5 Utah, 429, 17 Pac. 19, followed and approved in Mercantile Co. v. Glen, 6 Utah, 139, 21 Pac. 500, and in the case of Biagi v. Howes, 66 Cal. 469, 6 Pac. 100, a contrary doctrine seems to have been held. There, in effect, it was held that, under statutes identical with those here in question, a party intending to move has a right to wait for a notice in writing of the decision from the adverse party before giving notice of intention to move for a new trial, and that he is entitled to such notice of the decision before he is called upon to act, although he was present in court when the decision was rendered, and waived findings, and asked for a stay of proceedings on the judgment, and applied to the court for an extension of time in which to give notice of his intention to move for a new trial. It is there said that such a rule is more certain and definite, prevents controversies which under any other construction would be likely to arise, and accords with the evident intention expressed in the statute. Undoubtedly the serving of the written notice may be waived. But, as pointed out in the case of Burlock v. Shupe, supra, to constitute a waiver, "the party must do some affirmative act pointed out in the statute as

not necessary to be done until after the notice." Under the authorities, we are constrained to hold that the motion for a new trial was filed within time; and, as the appeal was taken within six months from the time of the overruling of the motion, it follows that the appeal was taken within time. The motion to dismiss the appeal must therefore be denied.

The appellant urges that the court erred (1) in overruling the demurrer; (2) in making the order requiring him to account; (3) that the court presided over by Judge Booth was not authorized to make findings, because the evidence with respect thereto was not heard by him, but was heard by Judge Hart; and (4) that the court failed to find upon the issues tendered by the counterclaims. We think the demurrer was properly overruled. With respect to the second assignment the appellant has not made to appear wherein the court erred in ordering him to make an accounting. The evidence which the court, presided over by Judge Hart, received and heard on behalf of both parties, lasting some four or five days, is not before us. Whether the court was or was not justified in making such an order must largely depend upon the evidence. We can perceive of some phases of the case where such an order might be made with propriety. Nothing having been made to appear to the contrary, we must presume that the order was properly made. Because the defendant failed to comply with the order, the court, however, was not justified in treating such failure and refusal as a confession of the plaintiff's demand, and entering a judgment against him for such an amount, in the face of his general denial and of his counterclaims. 1 Cyc. 413; Lee v. Abrams, 12 Ill. 111; Bishop v. Baldwin, 14 Vt. 145. But the court did not enter the judgment simply because the defendant failed and refused to comply with the order. The judgment of the court was also based upon the findings of fact as found and filed by the court, and as hereinbefore set forth. Had the court found upon all the material issues raised by the pleadings, we would, on this record, affirm this judgment. We think that the court presided over by Judge Booth was authorized to make findings upon the whole case. But assignment No. 4 must be sustained. It was the duty of the court to find upon all the material issues, including those raised by the counterclaims, regardless of the insufficiency of evidence to support them, or even though no evidence in their support was introduced. If the evidence was insufficient, or if there was no evidence in their support, the findings of fact with respect thereto should have been against the defendant, for on him was the burden of proof on such issues. With respect to these issues the findings are silent, and until they are disposed of no judgment

could be properly pronounced. Dillon Imp. Co. v. Cleaveland (Utah) 88 Pac. 670. For this reason the judgment must be vacated, and the cause remanded. We, however, are not disposed to grant a new trial.

The case is remanded to the trial court, with directions to set aside the findings and judgment, to make new and complete findings upon all the issues presented by the pleadings, and to enter judgment accordingly. This order is made pursuant to chapter 161, p. 260, Sess. Laws 1907, passed since the decision of Dillon Imp. Co. v. Cleaveland, supra. Neither party to have costs.

MCCARTY, C. J.. and FRICK. J., concur.

(50 Or. 210)

PUTNAM v. STALKER. (Supreme Court of Oregon. July 30, 1907.) 1. TRIAL-NONSUIT-DETERMINATION.

On a motion for a nonsuit, every intendment and fair and legitimate inference which can arise from the evidence must be made in favor of plaintiff, and the court must assume those facts as true which the jury might properly find under the evidence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 373.]


That plaintiff, in an action for malicious prosecution, was held by the magistrate on his preliminary examination, wherein witnesses were examined, both on behalf of the state and plaintiff, to answer at the next term of the circuit court, affords a prima facie case of probable cause; such prima facie case being subject to overthrow by evidence that his binding over was procured by fraud or other improper means.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 54.]


Evidence, in an action for malicious prosecution, examined, and held to establish that defendant in making the charge complained of acted in good faith, relying on the advice of the prosecuting attorney, who had previously been fully and fairly advised of all the facts within defendant's knowledge.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 152.]


Where one before the commencement of a criminal prosecution in good faith discloses to the prosecuting attorney all the facts within his knowledge, or which he has reasonable ground to believe, relating to the offense, and is advised to institute the prosecution, he is not liable as having acted without probable cause, though there were other exculpatory facts which he might have ascertained by diligent inquiry.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33. Mal.cious Prosecution, §§ 45, 46.]

Appeal from Circuit Court, Grant County; George E. Davis, Judge.

Action by H. N. Putnam against J. L. Stalker. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action for malicious prosecution. On March 27, 1906, defendant caused plaintiff to be arrested at Canyon City, Grant county, on a warrant issued by a justice of the peace, based on an information sworn to by defendant, charging plaintiff with having obtained from defendant on March 9, 1906, the sum of $37.50, under false pretenses. By reason thereof, plaintiff was confined in the county jail for 41 days. On May 21, 1906, at the regular term of the circuit court for that county, the prosecuting attorney returned into court an information indorsed "not a true bill," and thereupon plaintiff was discharged. In addition to the foregoing facts, plaintiff alleges that the prosecution was without probable cause and was actuated by malice, concluding with proper and usual allegations of damages. By his amended answer, defendant, by general denial, traverses the whole complaint, and, as a further defense, alleges the facts on which the charge was based; that, after making an investigation of all the circumstances, he submitted all the facts within his knowledge, through his attorney, to the deputy district attorney for that county, who advised defendant that there was probable cause for prosecuting plaintiff, and requested defendant to make and file the information on which the warrant was issued: that acting in good faith, and relying upon the advice of the deputy district attorney, he made the information; that on April 25, 1906, a legal preliminary examination of the charge against plaintiff was had before the magistrate, at which evidence was introduced and witnesses were sworn and examined, both on behalf of the state, represented by the deputy district attorney, and on behalf of defendant in said cause, who appeared in person and by his attorney, and, after a full and fair hearing of the cause, plaintiff herein was held by the magistrate to await the action of the grand jury at the next term of circuit court, and was admitted to bail in the sum of $250, and, being unable to give the same, he was committed to the custody of the sheriff of the county; that these acts of the defendant are the same acts stated in the complaint; and that the charges preferred were true. By the reply there was a general denial of the new matter of the answer. The cause was tried before a jury, and at the close of plaintiff's case defendant moved for a nonsuit, which was overruled by the court. He also requested of the court an instruction for a verdict in his behalf, based upon a claim that he had established by uncontroverted and competent evidence the defense that the prosecution was upon the advice and direction of the prosecuting attorney, which requested instruction was denied. The verdict was for plaintiff in the sum

of $120, on which judgment was accordingly entered, and from which defendant appeals. Error is assigned upon the overruling of the motion for nonsuit and the refusal of the court to instruct the jury as requested by the defendant, as well as upon admission of testimony objected to by defendant.

Errett Hicks, for appellant. V. G. Cozad, for respondent.

SLATER, C. (after stating the facts). By his motion for nonsuit, defendant invoked the ruling of the court on the legal effect of the evidence of plaintiff to support his cause of action. Upon such motion every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of plaintiff, and the court must assume those facts as true which the jury can properly find under the evidence. Wallace v. Railway Co., 26 Or. 174, 37 Pac. 477, 25 L. R. A. 6C3. And if the evidence tends to show facts which will sustain the action, though remote, the motion for nonsuit should not be sustained. IIerbert v. Dufur, 23 Or. 464, 32 Pac. 302. But if the testimony offered by plaintiff tends to show that the defendant had good reason to believe that the law had been violated, and he acted in good faith, it is the duty of the court to declare the legal effect of the evidence by allowing the motion for nonsuit. "The welfare of society," says Mr. Justice Bean, in Hess v. Baking Co., 31 Or. 513, 49 Pac. 803, "imperatively demands that those who violate the law shall be promptly and speedily punished, and to accomplish that purpose the rule has been firmly established that any citizen who has good reason to believe that the law has been violated may cause the arrest of the supposed offender, and, if in doing so he acts in good faith, the law will protect him against an action for damages, although the accusation may in fact be unfounded. This rule is founded on grounds of public policy to encourage the exposure of crime, and the punishment of criminals, and when, therefore, the act of a citizen in thus enforcing the law is challenged, the court must determine the question when the facts are admitted or established as to whether he had probable cause for so doing, and not leave it to the arbitrament of a jury."

At the outset of his case, plaintiff offered, and there was received, the transcript of the proceedings in the justice court, which contains the information sworn to by defendant before the magistrate on March 27, 1906, and the warrant issued thereon, and upon which plaintiff was arrested on the 27th day of March, 1906, and on the next day was committed by the magistrate to the custody

of the sheriff of the county. But it further shows that on April 25, 1906, a preliminary hearing was had before the magistrate upon the charge, and after an examination duly held according to law, at which the state appeared by the deputy prosecuting attorney for that county, and the plaintiff appeared in person and by his attorney, and after three witnesses has been examined on behalf of the state, and two on behalf of plaintiff, including himself, he was held to answer at the next term of the circuit court for that county, and was admitted to bail in the sum of $250. This evidence, instead of showing the want of probable cause, the burden of showing which was upon plaintiff, makes, it would seem, a prima facie case of probable cause. "It is quite generally held," says Mr. Justice Wolverton, in Stamper v. Raymond, 38 Or. 16, 62 Pac. 20, "that, where proof was offered upon the examination which is deemed sufficient by the committing magistrate upon which to commit, his commitment accordingly will afford prima facie evidence of probable cause." The effect of the commitment as evidence of probable cause, however, may be overthrown by other evidence showing that it was obtained by false pretenses or other improper means. Sharpe v. Johnston, 76 Mo. 660; Giusti v Del Papa, 19 R. I. 338, 33 Atl. 525; Womack v. Circle, 29 Grat. (Va.) 192. But, unless it is overthrown by testimony of that character, it becomes conclusive, and must prevent the plaintiff from prevailing. We are unable, however, to discover in the record any evidence on the part of plaintiff tending to show, and in fact it does not seem to have been claimed by him, that there was any fraud or other improper conduct on part of this defendant at the preliminary examination which prevented the plaintiff from obtaining a full and fair hearing, or that the conclusion announced by the magistrate was the result of any improper conduct of defendant; nor are we able to find any evidence on part of defendant in this case, after his motion for nonsuit was overruled, by which the prima facie case of a probable cause, made out by the commitment, was overthrown. The court therefore erred in denying the motion.

2. At the close of the testimony, defendant by his counsel requested the court to instruct the jury as follows: "The court instructs the jury that the fact is before you and is not disputed that, before the defendant began the criminal action described in the complaint in this case, he was advised by J. E. Marks, deputy district attorney for the Ninth judicial district of Oregon for Grant county, to institute the said criminal action, and that before receiving such advice there had been laid before the said deputy district attorney all the facts and circumstances 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 attorney also made an investigation of his own motion of the charge against the plaintiff, and that after making such investigation, and after receiving all such facts and circumstances, , advised the defendant to institute said criminal action, and that defendant acted on such advice in good faith; and I instruct you as a matter of law that such fact constitutes probable cause for said criminal action, and I instruct you to return a verdict for defendant." This requested instruction was denied by the court, and, an exception to the ruling having been taken by the defendant, error is assigned thereon. appears from the testimony that defendant, soon after having given plaintiff the order for the books, and after having paid plaintiff the sum of money charged to have been obtained under false pretenses, became suspicious of plaintiff's good faith and his right to receive the money as an agent for the proprietors of the work, and on that account defendant consulted with his attorney, A. M. F. Kircheiner, in regard to the matter, giving him a full, fair, and correct statement of all that had transpired between the parties. It transpired that this attorney and R. R. McHaley, residents of that neighborhood, also had recently had transactions with plaintiff similar to those which had taken place between him and defendant, and on which the criminal information was based. and under the same circumstances. These three persons, after talking the whole matter over among themselves, becoming convinced that they had been swindled, and that they would never be supplied with the books, made an investigation to ascertain the correctness of the statements and representations made to each of them by plaintiff when taking their orders and receiving their money. To that end communications were addressed to the Bureau of National Literature and Art in Washington, D. C., plaintiff's reputed principal, and to Mr. C. T. Brown, general manager of the Washington Post at Kansas City, Mo., which was, since June, 1905. the successor in interest to all of the proprietary rights in the sale and distribution of the books in question, formerly possessed by said bureau. On March 19, 1906, the Bureau of National Literature and Art, through E. M. Hunt, its assistant treasurer, replied that Putnam had not been in its employ for a long time, and saying: "We have been endeavoring to ascertain his whereabouts. *** If Mr. Putnam is still in your locality we would thank you to advise our Mr. C. T. Brown, C01 Century Building, Kansas City, Mo., at his expense by wire. Mr. Putnam's work has been very irregular, and we intend to put a stop to it. We should be pleased to receive this information if possible." On March 21, 1906, Kircheiner received a teleaphic message from Brown to have Putnam

without further information, Brown was advised by Kircheiner to forward a warrant. On March 25th following, the sheriff of the county received from Brown this telegram: "Arrest H. N. Putnam claiming to be representative of Bureau of National Literature and Art. Charge, collecting and retaining trust fund." Plaintiff was arrested and taken into custody by the sheriff, acting upon this order but without warrant; but he immediately advised Brown that he would not hold plaintiff unless a proper warrant was forthwith furnished, and on March 27th he received from Brown this message: "A. M. Kircheiner of Prairie City, Or., will make charge against Putnam. If not, collect all supplies belonging to Bureau of National Literature and Art and let go." All of these matters were fully disclosed to the deputy district attorney by Kircheiner acting for himself and for the defendant, and by R. R. McHaley. The deputy district attorney had talked with both of these persons, and they testified that they had fully and fairly disclosed to him all of the facts within their knowledge regarding not only plaintiff's transactions with defendant, but also plaintiff's dealings with them concerning the sale of books, and the evidence shows that the defendant had previously disclosed to Kircheiner and McHaley all of the material facts within his knowledge upon which the criminal charged was afterwards based, and that Kircheiner was acting as defendant's attorney and was advising him as to what he should do in the matter. The deputy district attorney also swears that he was made fuuv acquainted with all of the facts of the case by McHaley and Kircheiner, and that he had in fact been investigating appellant's conduct for a month or six weeks previously, and was well advised concerning his transactions, and based on such knowledge and information he advised Kircheiner to have his client, Stalker, the defendant, swear to the information, because he then believed there was sufficient evidence to hold plaintiff. He preferred that Stalker should make the information, instead of either Kircheiner or McHaley, because Putnam had admitted to McHaley that he had not forwarded Stalker's order, which fact made a stronger case against plaintiff, while they had no evidence as to whether plaintiff had forwarded McHaley's or Kircheiner's orders and money. This testimony is corroborated by both Kircheiner and McHaley. The latter testifies that he expressed his willingness to make the information himself; but, the deputy district attorney advising that Stalker had stronger case, the latter was the proper person to make the charge, and he was requested to swear to the information. Defendant swears that he was so advised and requested by his attorney, and that relying upon the

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