Moore v. Sauborin

Eagg, Judge, delivered the opinion of the court. This was an action for malicious prosecution instituted in the Montgomery Circuit Court. The plaintiff obtained a judgment, which, upon an appeal taken to the Sixth District Court, was affirmed, and the case is now brought here by writ of error. The points raised by the plaintiff in error refer to the exclusion of testimony offered on the part of the defendant below, the giving and refusing of instructions, and the failure of the plaintiff to reply to the new matter set up in the answer. This court has frequently held that, when the instructions taken as a whole present the law of the ease correctly, any objection to any one by itself, though good, will not be considered a misdirection of the jury. Malice and want of probable cause together constitute the ground upon which alone the plaintiff can recover in such an action as this. The existence of both must be made to appear, although direct proof of malice is not necessary where the want of probable cause is satisfactorily established. Without an examination in detail of the instructions given, it will be sufficient to say, generally, that they presented the law correctly, and in all respects as favorably for the defendant as the facts in the case warranted. Both of the instructions asked by the defendant were properly refused. The theory of the defense, as gathered from these declarations [494] ■of law, as well as the argument here, seems to be that to entitle the plaintiff to recover in this action it was incumbent on him to establish, to the satisfaction of the jury, his innocence of the crime charged against him by the defendant. Such is not the law. The prosecution, it is true, must be wholly ended and determined; but it does not follow that the actual proof of innocence is necessary to support the action. It can mate no sort of difference in this case to consider the extent to which courts have gone in protecting defendants on the ground of probable cause, where they have acted upon the advice of counsel learned in the law. It is clear that the advice of the justice is not such as is contemplated by the authorities upon this point; and the court committed no error in refusing the second instruction. (Williams v. Van Meter, 8 Mo. 303.) It follows, also, that the evidence sought to be introduced upon this point was properly excluded by the court. It is difficult-to understand why the declarations of Sabourin, made to Runkle or any body else, should be insisted upon as competent evidence to, show that he was not actuated by malice in commencing the prosecution before the justice. There are no circumstances that can justify the introduction of such testimony, and it must be held inadmissible for any purpose in this case. By reference to the pleadings, it will be seen that in the amended answer filed by consent during the progress of the trial, in addition to the specific denial of the allegations in the petition, there is new matter set up by way of defense that was not replied to by the plaintiff. At the time of the return by the constable of the property alleged to have-been stolen, with the party accused, it is averred that the property “ was then and there delivered to this defendant, and plaintiff and defendant did each pay one-half the costs of said search-warrant, to-wit: the sum of one dollar and fifty cents; and defendant says that a full and complete settlement of all difficulty, damages, and liabilities, as between this defendant and said Matthew Moore, by reason of the issuing of such search-warrant, was then and there made.” The sixteenth section of chapter 165, Gen. Stat. 1865, is explicit in declaring that, upon a failure to reply or demur to such new matter “ within the time [495] prescribed by the rule or order of the court, the defendant shall have such judgment as he is entitled to upon such statement.” The provisions of the thirty-sixth section, of the same chapter are equally explicit in directing that “ every material allegation of new matter contained in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true.” We are not called upon to scrutinize very closely the averment of ■this new matter. There was no demurrer to ■ it. The object ■evidently was to set up such a settlement or compromise of the whole matter, made between the parties at the time of their appearance before the justice, as amounted to a release of the defendant from all liability on account of the prosecution that had been instituted against the plaintiff. This, if true, was a ■defense to the action. Without a reply, it stood confessed upon the record and entitled the defendant to a judgment. He was not bound to introduce any evidence upon that point, and we shall ■not look to the bill of exceptions for the purpose of ascertaining whether it is sustained by the proof made or not. For this error in the proceedings had in the Circuit Court, the ■other judges concurring, the judgment will be reversed and the case remanded for a new trial. It is proper to remark that the transcript does not present this ■case here in proper shape. There is such a blending together of the record proper with the matters that should be separately presented ■in the bill of exceptions as to produce great confusion in tracing out the steps taken in the progress of the cause. It is easy enough to have a separate copy made of the entire record in the case, so as to show all the proceedings, with every order and judgment of the court, with the proper dates of filing and entry of the same. Then the bill of exceptions should contain the ■evidence in the cause, with all the matters of exception that arise during the progress of the trial. In this case the original answer ■of the defendant is omitted altogether, and the time of trial and filing of amended answer is stated with so much confusion as to make it a matter of doubt whether it was filed before or after verdict. The responsibility of having the transcript in proper shape rests upon Jhe attorneys who bring their causes to this court. [496] The additional amount of labor and trouble imposed upon the judges, where they fail to perform their duties in this respect,, requires that especial attention be called to the fact, so that it may not occur in future.