Auener v. Norman

THOMAS, J.

This is an action to recover damages for alleged malicious prosecution. The case was tried by the court without a jury.

It is alleged in the complaint that on or about the twenty-sixth day of June, 1914, within the county of Santa Barbara, said defendant caused a criminal complaint to be filed in the justice’s court, charging plaintiff with the crime of forgery, which, according to the allegations of said criminal complaint, was that plaintiff did “willfully, unlawfully, feloniously and fraudulently make and forge a certain telegram or telegraphic message,” which “message” purports to have been signed by L. E. Norman, the defendant herein, and delivered to the Western Union Telegraph Company for transmission; that the same was uttered, published, passed and sent by said company accordingly; all this with intent to prejudice, damage, and defraud the defendant herein, the complainant in that action; and further, that this was done by the defendant here with malice, and without probable cause. That because of plaintiff’s being arrested and imprisoned, and of the shock and

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nervous strain produced thereby, and the fact that the alleged facts and circumstances of said arrest and imprisonment had been published in certain newspapers and circulated accordingly,. plaintiff’s health and physical condition have been greatly impaired. Then follows a prayer for damages, actual and exemplary, and for attorney’s fees.

The defendant, by his answer, admits the filing of the criminal complaint as aforesaid, the issuing of the warrant of arrest, the preliminary examination and the dismissal of the proceeding; but denies that these things, or any of them, were done, or caused to be done, by him with malice, and without probable cause, and relies upon the following propositions as a complete defense here: (1) That he acted upon probable cause; (2) without malice, and (3) upon advice of an attorney.

The court found for the plaintiff, and assessed his actual damages at five hundred dollars, and held that he was not entitled to any exemplary damages. Judgment was entered accordingly. There was a motion for a new trial, which was denied. This appeal is taken from both the judgment and said order.