{ "id": 5171099, "name": "Julius Schaper and John Stelzick v. Adolph Sutter", "name_abbreviation": "Schaper v. Sutter", "decision_date": "1896-03-31", "docket_number": "", "first_page": "257", "last_page": "259", "citations": [ { "type": "official", "cite": "63 Ill. App. 257" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "77 Ill. 603", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821737 ], "opinion_index": 0, "case_paths": [ "/ill/77/0603-01" ] }, { "cite": "9 Ill. App. 392", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2409512 ], "opinion_index": 0, "case_paths": [ "/ill-app/9/0392-01" ] }, { "cite": "77 Ill. 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821748 ], "opinion_index": 0, "case_paths": [ "/ill/77/0032-01" ] } ], "analysis": { "cardinality": 268, "char_count": 4241, "ocr_confidence": 0.502, "pagerank": { "raw": 6.22383782585142e-08, "percentile": 0.3850546885165892 }, "sha256": "907d44846a28fbea3c05ee0357f8cba3407e3d28eb3ab2534809c5b1bb0d20f7", "simhash": "1:d1a3a722765093b2", "word_count": 711 }, "last_updated": "2023-07-14T18:54:49.987215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Julius Schaper and John Stelzick v. Adolph Sutter." ], "opinions": [ { "text": "Mr. Presiding Justice Gary\ndelivered the opinion of the Court.\nThis was an action by the plaintiff in error against the defendant, for maliciously and without probable cause suing out an attachment, and levying upon the property of the plaintiffs. The jury seems to have been instructed by thirteen lengthy instructions upon the theory that the jury would find anyhow for the plaintiffs, and therefore the court would leave no opening for the reversal of a judgment by denying any of the instructions asked by the defendant.\nInadvertently, the court inserted, as a modification of one of those instructions, a recital \u201cthat defendant was not prompted by malice, and that defendant believed that said affidavit was true.\u201d The only defense attempted of this modification is that while \u201c those words were not so connected with the other portions of the instruction as to read smoothly, in view of the other instructions, the jury could hardly have been misled.\u201d The suit was originally against several defendants, as to all of whom,except the defendant in error, the action was discontinued during the trial. One instruction told the jury that in order to recover, the plaintiffs must show that \u201c neither the defendants, nor any of them, nor any one acting on their behalf, had any reasonable or probable cause for causing said writ to be issued.\u201d\nAnother instruction was, that to constitute malice it was necessary that the conduct of the defendants was \u201c from a stronger motive than the desire to collect their debt against the plaintiffs, and from a stronger motive than mere spite against them because they have not paid the said debt.\u201d\nPerhaps the instruction on probable cause did no oth,er harm than that it increased the pressure upon the jury, resulting from the iteration and reiteration, in many variations of phrase, of the burden the plaintiffs were carrying, to find for the defendants.\nBut it is very bad in itself. All that is required to constitute probable cause is an honest belief, or strong ground of suspicion, of the plaintiffs\u2019 guilt, and a reasonable ground of the belief or suspicion; and that may be upon information from others as well as personal knowledge. Harpham v. Whitney, 77 Ill. 32.\nSeveral plaintiffs may act upon information worthy, apparently, of unhesitating belief, and fully believed by all but one of the several plaintiffs; that one may have such other information, which he does not disclose, as takes from him. the protection of probable cause, and yet the instruction protects him because the others had probable cause, reduotio ad absurdmn.\nThe instruction as to malice is supported by the case cited by the defendant\u2014Splane v. Byrne, 9 Ill. App. 392\u2014but there must be some mistake in the text there. Abusing the process of the law, to the injury of another, is of itself malicious. Krug v. Ward, 77 Ill. 603.\nWe can not go through all the instructions, nor is it necessary. There are few subjects upon which the principles of law are more familiar by decisions of this State than upon malicious prosecution.\nThe judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Presiding Justice Gary" } ], "attorneys": [ "Rosenthal, Kurz & Hirschl, attorneys for plaintiffs in error.", "Knight & Brown, attorneys for defendant in error." ], "corrections": "", "head_matter": "Julius Schaper and John Stelzick v. Adolph Sutter.\n1. Probable Cause\u2014What Constitutes.\u2014All that is required to constitute probable cause for suing out an attachment and levying the same upon the goods of another is an honest belief, or strong ground of suspicion, and a reasonable ground of the belief or suspicion, and this may be upon information from others, as well as personal knowledge.\n3. Same\u2014As to Joint Tort Feasors.\u2014Several persons may act upon information worthy, apparently, of unhesitating belief, and fully believed by all but one of such persons, who may have such other information which he dare not'disclose, as takes from him the protection of probable cause.\n3. Malice\u2014Abuse of Legal Process.\u2014Abusing the process of the law, to the injury of another, is of itself malicious.\nTrespass on the Case.\u2014Abuse of legal process. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1896.\nReversed and remanded.\nOpinion filed March 31, 1896.\nRosenthal, Kurz & Hirschl, attorneys for plaintiffs in error.\nKnight & Brown, attorneys for defendant in error." }, "file_name": "0257-01", "first_page_order": 253, "last_page_order": 255 }