Gambar halaman
PDF
ePub

"And thereupon the said defendants afterwards, to wit, on the seventeenth day of January, A. D. 1887, falsely and maliciously, and without any reasonable or probable cause whatsoever, went and appeared before said justice of the peace, and then and there made and filed with the said justice an affidavit of the said J. Reid Crowell, for the purpose of obtaining a transcript of the said pretended judgment to be filed in the office of the clerk of the circuit court for the county of Jackson, and then and there obtained such transcript of said justice, in due form, duly certified by said justice; and afterwards, to wit, on the same day last mentioned, they, the said defendants, caused and procured the said transcript, so ob tained as aforesaid, to be filed in the office of the circuit court for the county of Jackson, and the same was by the said clerk then and there duly entered and docketed as a judgment of the circuit court for the county of Jackson; and at the same time of entering and docketing said transcript judgment tbey, the said defendants, falsely and maliciously, and without any reasonable or probable cause wbatsoever, caused and procured the said clerk of the circuit court for the county of Jackson to issue an execution upon said pretended judgment, in due form, dated the said seventeenth day of January, and directed to the sheriff of the county of Washtenaw, and afterwards, on the same day last aforesaid, went and delivered the said execution to William Walsh, then sheriff of the said county of Washtenaw.

“ And afterwards, to wit, on the twenty-seventh day of January, A. D. 1887, the said defendants caused and procured the said sheriff of Washtenaw County to go and enter upon the premises of the plaintiff, and then and there to demand from said plaintiff payment of the said execution, and then and there threatened the said plaintiff that if he did not immediately pay the same, then the said sheriff should and would at once levy upon and seize all of the personal property of said plaintiff upon said execution, and sell the same to make the amount thereof; and the said defendant J. Reid Crowell was then and there present with the said sheriff, aiding as the attorney and agent of the defendant Randy June, and assisting and directing the said sheriff, and then and there stated to the plaintiff that said execution was good and valid, and he would have to pay the same; and then and there, by means of said representations last mentioned, and the threats aforesaid, so made by said sheriff, to seize and

sell the property of said plaintiff, they, the said defendants, falsely and maliciously, and without any reasonable or probable cause whatsoever, procured and forced the said plaintiff to pay to the said defendants, against his will, a large sum of money, to wit, the sum of $240, as satisfaction of said pretended execution and the pretended judgment upon which the same was issued, and the plaintiff did then and there pay the same to the said William Walsh, sheriff as aforesaid, and the said defendant J. Reid Crowell, attorney for said defendant Randy June, then and there received the same in full satisfaction aforesaid.

“SECOND COUNT. “ And whereas, also, the said defendants, without having any reasonable or probable cause for so doing, but contriving and intending to harm, oppress, and injure the said plaintiff, falsely and maliciously went and swore out a summons in favor of said defendant Randy June, and against the plaintiff, before Joseph M. Griswold, a justice of the peace of the township of Columbia, in said county of Jackson, on the third day of January, A. D. 1887, and returnable before said justice on the eleventh day of said January, 1887, at ten o'clock in the forenoon of that day, they, the said defendants, then and there well knowing that the said pretended plaintiff in said suit bad no just cause of action whatever against the said plaintiff of any kind, and that said plaintiff resided in the county of Washtenaw, and not in said county of Jackson, and they, the defendants, then and there falsely and maliciously intending to so use the said summons, so issued as aforesaid, as to obtain an illegal and fraudulent judgment against the said plaintiff for a large amount of money, to wit, the sum of three hundred dollars, and to obtain an execution, and to use the same for the purpose of extorting the said amount of money from said plaintiff.

“And such proceedings were thereupon had that afterwards, to wit, on the said eleventh day of January, A. D. 1887, the said defendants appeared before the said justice, at his office in said township of Columbia, at the hour mentioned in the said summons for the return thereof, and then and there caused and procured the said justice to enter and docket a judgment in favor of said Randy June, and against the plain. tiff, for the sum of $300 damages and $2.60 costs of suit, which said pretended judgment was illegal, fraudulent, and void, as raid defendants well knew; and the said defendants afterwards, to wit, on the seventeenth day of January, 1887, falsely and maliciously caused and procured the said justice to make and issue a transcript of said pretended judgment in due form, and duly certified by said justice, and afterwards, to wit, on the same day last mentioned, filed the said transcript in the office of the clerk of the circuit court for the county of Jackson, and then and there caused the said clerk to enter and docket the same as a judgment of the circuit court for the county of Jackson; and at the same time of entering and docketing said transcript judgment, the said defendants caused and procured the said clerk of the circuit court to issue an execution upon said pretended judgment in due form, and directed to the sheriff of said county of Washtenaw, and on the same day delivered the said execution to William Walsh, sheriff of said Washtenaw County; and afterwards, to wit, on the twenty-seventh day of January, 1887, the said defendants caused and procured the said William Walsh, sheriff as aforesaid, to proceed to collect the said execution from the plaintiff, and force him, the said plaintiff, to pay the same; and the said plaintiff, then and there, against his will, and protesting that he was not liable to pay the same, or any part thereof, was forced and compelled by said sheriff, in order to protect his property from lévy and sale, to pay the same to him, and did pay to him, for said defendants, the sum of $240 in money, - all which said several grievances in this court mentioned were done and committed by said defendants against the plaintiff, falsely, and maliciously, and without any reasonable or probable cause whatsoever.

“ By reason of which said several premises the said plaintiff has been and is greatly injured, and put to large expense and trouble, and to great anxiety, and has been and is otherwise greatly injured in his credit and circuinstances, to the damage of the plaintiff' of five thousand dollars, and therefore he brings this suit. "HEWETT AND FREEMAN, Plaintiff's Attorneys.

“AUSTIN BLAIR, of Counsel." It is claimed by defendant's counsel that the declaration is not good for malicious prosecution, - first, because it alleges that an erroneous judgment was taken, and jurisdiction was lacking in the court resorted to, and that the facts show that the plaintiff denied the jurisdiction of the justice, and refused to participate in any manner in the proceedings directly produced by the prosecution; that he was therefore in no wise injured by the commencement of this suit and the taking of

[ocr errors]

this judgment; also, that no case can be found where an aotion for malicious prosecution has been sustained, where the pleadings show a determination in the original action against the party claiming damages for malicious prosecution.

The facts in the case do not show that plaintiff denied the jurisdiction of the justice, and refused to participate in the proceedings on that account. It is true he did not appear, because of the letter he received (which was probably sent to him by Crowell or a confederate, and which the court erred in not admitting in evidence); but afterwards, when the parties came to him with an execution issued upon a pretended judgment, docketed in the circuit court for the county of Jackson, and he was prevented from seeing an attorney, he was led to believe the judgment was a good one, and acted accordingly, and the purpose of the conspirators was accomplished; and the fact of the court not having jurisdiction, when it was not known by him at the time the injury by such prosecution was inflicted, cannot be used as a bar against his relief or remedy for such injury.

In Sweet v. Negus, 30 Mich. 406, it was held that where the want of jurisdiction did not appear upon the face of the warrant, it could not bar the action; and the point whether, when the justice had by law no jurisdiction of the subject matter, or a total want of jurisdiction otherwise appears upon the face of the warrant, the proceedings could properly be called a prosecution, was expressly not passed upon. I am satisfied, however, that if the wrong and injury is done by a malicious suit, it is immaterial, upon principle, whether the court had jurisdiction or not to entertain such suit. For every malicious wrong there is certainly in this day and age a remedy; and under our liberal system of pleading in this state, a plain and clear statement of the facts constituting the wrong is sufficient, and it is but little matter, in actions of trespass on the case, what the action is named or called.

The first count of the declaration plainly shows a malicious and actionable wrong, and every averment was supported by cogent proof. It may be that the prosecution of the suit to judgment in the justice's court by itself alone did not touch the person or property of the plaintiff, but the writer of this opinion, in Brand v. Hinchman, 68 Mich. 590, 13 Am. St. Rep. 362, held that it was not necessary, in an action for the malicious prosecution of a civil suit, that the person should be molested or property seized, if it appeared that the suit was malicious, and without probable cause, and the party had been injured or damaged thereby: See 68 Mich. 596,598, and cases there cited. I am still of the opinion there expressed, and have been fortified in my position by the facts of this case, and the decisions of other courts not cited in Brand v. Hinchman, 68 Mich. 590: McPherson v. Runyon, 41 Minn. 524; 16 Am. St. Rep. 727; Pope v. Pollock, 46 Ohio St. 367; 15 Am. St. Rep. 608; Allen v. Codman, 139 Mass. 136. See also discussion of this question by J. D. Lawson in 21 Am. Law Reg. 281, 353.

It is true that the general rule is, that to support an action for malicious prosecution the plaintiff must establish three things: 1. The fact of the alleged prosecution, and that it has come to a legal termination in the plaintiff's favor; 2. That the defendant had not probable cause; 3. That he acted from malicious motives: Hamilton v. Smith, 39 Mich. 222, 225.

In the case before us, the defendants had no probable cause against Antcliff. It was conclusively shown that June never had any claim against Anteliff, except one for fifty dollars for getting him a wife, and never pretended to have any other; and from Crowell's own testimony it is apparent that he knew this. He testified that June told him of some other items of account, but he cannot remember any except the one of fifty dollars. The judgment was taken for three hundred dollars. Witness sword that June told him he did this because Crowell told him he might just as well get a judgment for three hundred dollars as for fifty dollars. Crowell does not deny this in his testimony. The taking and collecting of a judgment for three hundred dollars, under these circumstances, shows malice.

But the defense urge that the other element is wanting; that the proceeding or suit did not terminate in plaintiff's (Antcliff's) favor. In this case, however, the judgment was void upon the face of the justice's docket and files. The summons was not issued under Howell's Statutes, sec. 7317. It was directed to any constable of Jackson County, and could not be served by an officer of Washtenaw County, the same as in any ordinary suit. The making of the affidavit upon the return day of the summons, and the judgment entry attempting to bring the case within section 7317, were futile. When a suit is commenced under this section, and the defendant is not a resident of the county where suit is brought, and it is intended to gain jurisdiction by service in the adjoining county, the process must be issued directed to an officer of

« SebelumnyaLanjutkan »