Richardson v. Dybedahl

Citations

• 14 S.D. 126
• 84 N.W. 486
• 1900 S.D. LEXIS 17

Syllabus

<p>1. By Comp. Laws, § 1277, it is the duty of the road overseer to remove obstructions in any highway in his township; by Section 6381, every one obstructing a public officer'in'the discharge of his duty is guilty of a misdemeanor, and Section 7148 declares that a peace officer may arrest, for a public offense committed in his presence, without warrant. Held, that where in an action for malicious prosecution, it appeared that the overseer of highways had attempted to remove a fence on plaintiff’s land, on the ground that it obstructed a highway, and there was evidence showing that she resisted such removal, and she was arrested by a deputy sheriff without a warrant, and she claimed that defendants instructed the sheriff to arrest her, the issue-to be determined was not whether a highway had been legally established, so that plaintiff’s conduct was a public offense under Section 6381, justifying her arrest under- Section 7148, but whether the facts were such as to have led a person of ordinary caution to believe such to be the case.</p> <p>2. If defendants instructed the officer to arrest plaintiff, and plaintiff was afterwards discharged without hearing, their liability was the same as if they had instituted proceedings.</p> <p>3. There could be n-o recovery unless both malice and want of probable cause were shown.</p> <p>4. In an action for malicious prosecution, malice may be inferred from want of probable cause.</p> <p>5. The question whether there was a want of probable cause was for the jury.</p> <p>6. It being necessary to determine what facts were known to defendants when the arrest was made, it was proper to admjt in evidence the proceedings relating to the establishment of the highway, showing the position of the highway on the earth’s surface, and what inquiries had been made and what advice taken by defendants as to the Iocs tion and legality of the highway.</p> <p>7. Where plaintiff claimed that her arrest at the instance of defendants had been illegal,