{
  "id": 5307800,
  "name": "James W. Kimmel et al. v. Jonas Henry",
  "name_abbreviation": "Kimmel v. Henry",
  "decision_date": "1872-09",
  "docket_number": "",
  "first_page": "505",
  "last_page": "509",
  "citations": [
    {
      "type": "official",
      "cite": "64 Ill. 505"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T16:22:19.635879+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "James W. Kimmel et al. v. Jonas Henry."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Breese\ndelivered the opinion of the Court:\nThis was an action on the case, in the Mercer circuit court, for malicious prosecution, and a count for abducting plaintiff\u2019s wife and children.\nThe jury found the defendants- guilty of a malicious prosecution, and assessed the damages at two hundred and fifty dollars. A motion .for a new trial was overruled and judgment rendered on the verdict, to reverse which the defendants appeal, one of them, Kimmel, claiming that he did not participate in any manner in the prosecution, and Mountz, the other appellant, claiming he had probable cause therefor.\nAppellants\u2019 counsel have presented in their abstract only such parts of the evidence as seem to pertain to the malicious prosecution, whilst an inspection of the record itself shows the two charges to be inseparable, and presents a case of highhanded wrong and outrage against appellee, admitting of no excuse or palliation.\nWe have examined the evidence in the record, and are well satisfied from it that Kimmel had been taking liberties with appellee\u2019s wife, who was a sister of his\u00bb co-appellant, Mountz, and was the principal cause of their troubles.\nAppellee testifies- he had quarrelled with Kimmel, with Mountz, and with his wife. He had worked for Kimmel in his mill, and his position became so uncomfortable he had sold off his property with the determination to leave the country and go with his family to Pennsylvania. He had taken them, a wife and three little girls, the oldest five years of age, to the house of a friend, a Mr. Haznoh, preparatory to the journey. While there, Kimmel\u2019s wagon, driven by his son, in which were four men, Mountz being one of them, about nine o\u2019clock at night, came to the house, the children taken out of bed, and they, with their mother, carried in this wagon to Kimmel\u2019s house, Avhere they remained se\\reral days, appellee during the time forbidden by Kimmel to see them after he had one intervieAV Avith them.\nTo secure these parties from interruption by appellee, as the evidence tends strongly to shoAV, Mountz, the same day, appeared before a justice of the peace and made oath he av\u00fc.s afraid appellee Avould beat and wound him ; that on the seventh of May, 1871, he assaulted and threatened to strike him, and that he was a man whom, he had reason to fear, would beat and wound him.\nThis affidavit was made on the 20th day of May, whilst appellee\u2019s family were at their friend\u2019s house, and the warrant put in the hands of a constable to be executed. Kimmel was in the town 'Avhere the magistrate lived, on the day the warrant was SAVorn out, and on which appellee was arrested.\nAfter Mountz made the complaint, the magistrate, Mr. Graham,had some conversation with him about it, and Mountz said \u201chis whole object was to get the woman;\u201d said he considered her abused by her husband, and would like to get her away from him. On being asked by the magistrate if Henry (appellee) could give bail, and who said if he could not he would have,to go to jail, Mountz replied that was just what he wanted.\nThe \u2019 trial did not take place until several days after the warrant issued.\nAnother' witness, Buckholder, testified he was at Henry\u2019s sale, and had on that day a conversation with Mountz in which Mountz told him he had sworn his life on Henry; witness said he hoped he was not afraid of Jonas. Mountz replied, it was not that, but if he was arrested he (Mountz) would have a better chance to get Sarah away; he was looking for the constable all day. The sale was about the middle of the day. Kimmel said to this witness, Henry was to be arrested that day. This witness remained at Henry\u2019s place until he and his family left on Daznoh\u2019s wagon. Henry did not then know a warrant was out for him, but his wife did.\nUnderwood, the officer who arrested Henry, testified he arrested him between five and six o\u2019clock in the afternoon of the day of his sale ; took him before \u2019Squire Graham, and he gave bail to appear on Monday morning. After the arrest, Kimmel said to him, he had better be careful about letting him go to supper by himself; that he might get into trouble. The officer did let him go to supper. Mountz and Kimmel were there together in front of Bassett & Connell\u2019s office. They said Henry was not to be trusted.\nThis testimony tends strongly to show a great interest on the part of Kimmel in this prosecution, and it is strengthened by the testimony of Mr. and Mrs. Daznoh, who relate the occurrences at their house on the night Mrs. Henry and the children were taken to Kimmel\u2019s in Kimmel\u2019s wagon. Mountz, from the wagon, called out to his sister to \u201churry np,\u201d and said Henry was coming \u25a0 over with weapons to raise a row. . \u2018 ' ' '\u2022\nMountz'said this, doubtless, to intimidate \u25a0 his sister, supposing all tlie time that Henry was in close custody, in jail, as he told the magistrate\u2019that'was where they .wanted him. .\nBut Henry, being released on bail, did make his appearance as his wife was getting ready to leave in the wagon, and he said to her, \u201cNow, Sally, don\u2019t do that; don\u2019t go away,\u201d but she persisted, and \u25a0 went to Kimmel\u2019s. Mountz insisted she should bring out the children.\nThe witness wh\u00f3 spe\u00e1ks of this part of the transaction is Mr. Daznoh, and he further testified that Kimmel told him about the arrest ;'that he wanted to have Henry arrested so that he could .get Mrs. Henry away, but he was afraid to undertake it, for fear Henry would make her many good prom1 ises, and the whole thing would fail. When she was taken away Kimmel told Mrs. Henry they had Henry where he would not hurt them.\nThis, we think, abundantly proves complicity on the part of Kimmel in the prosecution instituted by Mountz.\nNow, let us see if there was probable cause for the prosecution.\nThis is the whole of it: Mountz testified he was boarding at Kimmel\u2019s, and went to Henry\u2019s to get ready for church ; \u25a0asked Henry if he could have some of his hair oil, and he \u2022got angry and Mountz left. Henry followed him out, making threats, and asked him if he intended to make trouble in his family, and Mountz said no. This is the occurrence as Mountz testified, and on the strength of it he made oath that Henry would injure him if he was not bound over to keep the peace. A witness, Hasbrook, testified, and so did Lona Kimmel,.a \u25a0son of appellant, that they remembered going to church with Mountz. Mountz stopped at Henry\u2019s and went into the house, and soon after came out, and Henry followed him, shaking his .fist at Mountz, and said he would fix him when he came back.\nIt is evident Mountz did not see this hostile act of Henry, for he says nothing about it in his testimony. Shaking the fist behind one\u2019s back, and not in striking distance, is not a very terrifying act, and hardly sufficient to justify the man, who did not see it, in \u201cswearing the peace\u201d against the perpetrator.\nHo, it was all a pretense, as the evidence fully shows. He wanted to get Henry in jail, and, while he was in durance, get his wife away from him. That was his \u201cwhole object.\u201d This he acknowledged to the magistrate and to Jacob Buck- . holder.\nThe jury had a right to believe the prosecution was not in good faith, and for a laudable purpose. That Kimmel was \u201cact and part\u201d in the transaction, there can be no doubt from the testimony.\nThe fact that Mountz consulted a lawyer who prepared his affidavit,and prosecuted on his advice, would be an apology for him if the case was not so full of bad motive. If he told all the facts to his lawyer, we can only say he did not happen to choose a wise counselor. But Mountz does not testify he communicated to his' lawyer any of the facts, nor did he establish it on the trial.\nThe court put the case fairly to the jury by the instructions, and appellants may be thankful the jury did not visit them with a more severe infliction.\nWe can not disturb this verdict. The evidence fully sustains the finding. There was no cause for the prosecution. It was not made in good faith.\nThe judgment must be affirmed;\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Breese"
      }
    ],
    "attorneys": [
      "Messrs. Pepper & Wilson, for the appellants.",
      "\u25a0Messrs. Taliaferro & Brock, for the appellee."
    ],
    "corrections": "",
    "head_matter": "James W. Kimmel et al. v. Jonas Henry.\n1. Malicious prosecution. Where a party procured the arrest of- the plaintiff on a peace warrant, and from his evidence on the examination it did not appear that he had any just fear of personal or other injury, but the whole of the facts showed that the arrest was not in good faith, but for the sinister purpose of getting the plaintiff\u2019s wife away from him; and that another party was acting with him in trying to get the wife away, so that the two were conspiring to have the arrest for an unlawful purpose: Held, that a verdict in favor of the plaintiff against the defendants for \u00a7250 must be sustained.\n2. Same\u2014advice of counsel no excuse, when. Where the parties in such a case consulted an attorney-at-law prior to swearing out the warrant, who drew the complaint and prosecuted, but the evidence failed to show that the attorney was informed of the facts: Held, in view of the bad motive shown, that the advice of the attorney afforded no defense.\nAppeal from the Circ.uit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.\nMessrs. Pepper & Wilson, for the appellants.\n\u25a0Messrs. Taliaferro & Brock, for the appellee."
  },
  "file_name": "0505-01",
  "first_page_order": 505,
  "last_page_order": 509
}