Hermance v. Blackburn

THE COURT.

No brief having been filed herein by respondent, the following statement of facts is taken

verbatim

from the brief filed by appellant (Bule Y, sec. 1) :

“This action is one for malicious arrest and prosecution. The.trial was before a jury. At the close of plaintiff’s evidence, defendant made a motion for nonsuit which was granted, and thereupon a judgment of dismissal entered. Plaintiff appeals.

“Plaintiff and defendant are next door neighbors to one another. Defendant had built his home with an ornamental archway which extended therefrom over to and beyond the common boundary line between plaintiff and defendant. From this archway defendant built a small stone wall parallel to the boundary and extending to the street sidewalk. The. encroachment of the arch and stone wall was about 1.85 feet. Plaintiff instituted a civil aetion to compel the removal of same. The trial court made findings in that action that the arch and stone wall did not encroach upon plaintiff’s property. Plaintiff appealed from that judgment ‘ on the ground there was no evidence to sustain those findings and on said appeal the said judgment was reversed. ’ That action in the present action is referred to as the ‘boundary line action’.

“Prior to the trial and decision of the ‘boundary line action ’, plaintiff, in the early morning in the month of October, 1926, and while his automobile engine was running to deaden the sound of the blows of his hammer, broke up and removed the stone wall. Five months later the ‘boundary line action’

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was tried in which the decision above mentioned was rendered, and which was subsequently reversed by the Supreme Court. When that decision had been rendered by the trial court, this defendant had two typewritten notices posted warning and threatening to arrest and prosecute any person for any trespassing on defendant’s property. One of these notices was posted in the front, and the other in the rear of the premises and within an inch of the boundary line which defendant claimed as ‘represented by the southerly face of the stone wall as it had formerly existed’, plaintiff’s property being to the south of defendant’s property. Plaintiff ‘picked up said notices and (threw) them back’ on to defendant’s property. Thereupon defendant swore to and filed a criminal complaint against plaintiff on June 3, 1927, charging him with having destroyed said stone wall; that such criminal action was dismissed and on June 28, 1927, another criminal action was filed by defendant against plaintiff charging him with having maliciously torn up said stone wall and which was alleged to have been built upon defendant’s property. On such charge plaintiff was arrested and tried, and a verdict of not guilty was returned by the jury. The present action has been brought to recover damages for such arrest and prosecution, which plaintiff alleges was done maliciously and without justifiable or probable cause.”