Lorain County. MALICIOUS PROSECUTION. [Lorain (8th) Circuit Court, October 8, 1903.] Hale, Marvin and Winch, JJ. FRANK LIEBLANG V. CLEVELAND CITY ELEC. RY. Co. 1. ALLEGED MALICIOUS PROSECUTION MUST HAVE TERMINATED IN FAVOR OF ACCUSED. An action for malicious prosecution cannot be maintained until the prosecution complained of has finally terminated in favor of the accused, either by an acquittal or the dismissal of the prosecution and his discharge by the proper authority, and the fact of such favorable termination must be alleged in the petition, and when put in issue by the answer must be established by the evidence, and an assumption by plaintiff's counsel in his examination of plaintiff at the trial that the prosecution has so terminated is not sufficient to establish such fact. 2. IMPROPER for COUNSEL TO ASSUME FACTS NOT IN EVIDENCE IN MALICIOUS PRoseCUTION. It is improper for plaintiff's counsel to assume in his examination of witnesses that an alleged malicious prosecution has finally terminated in favor of plaintiff, where there is no evidence offered tending to show that fact. ERROR to court of common pleas of Lorain county. Kerruish, Chapman & Kerruish, for plaintiff in error. Squire, Sanders & Dempsey, E. G. Johnson and Hale C. Johnson, for defendant in error. MARVIN, J. (Orally.) The case of Frank Lieblang against The Cleveland Electric Railway Company is brought here upon proper proceedings for a review, complaint being made by Lieblang, who was the plaintiff below as well. as the plaintiff in error, that error to his prejudice was committed by the trial court upon the trial. The suit was brought for malicious prosecution. The petition setting out, stating it briefly, that The Cleveland Electric Railway Company conspired with The Citizens Electric Railway Company, of Detroit, and certain natural persons in the city of Detroit to have Lieblang arrested upon a false charge in Detroit, and prosecuted upon such false charge; that he was arrested; that he was in jail for several days, and that for many months he was under bond and required to appear and did appear a good many times in the city of Detroit, and that he was thereby greatly injured. The petition further states, as was clearly necessary, that the prosecution in Detroit against him was terminated, and he states that the case or prosecution was terminated by a nolle being entered by the prosecuting attorney with the permission of the court. Lieblang v. Electric Ry. Co. The answer denied that The Cleveland Electric Railway Company was in any wise responsible for the arrest of Lieblang, and denies, for want of knowledge, that the prosecution begun in Detroit was terminated at the time the suit was brought. That raised the issue squarely, and put the plaintiff upon proof that the prosecution in Detroit was ended. It is settled without any question in Ohio that before a suit can be brought for malicious prosecution, the prosecution must be ended, and must have ended either by an acquittal of the accused or by a dismissal of the prosecution. The last case to which our attention has been called on that subject is Douglas v. Allen, 56 Ohio St. 156. "In order to maintain an action for malicious prosecution, it must be shown that the prosecution was legally terminated before the commencement of the action; but it is not essential that the plaintiff shall have been acquitted of the charge on a trial of the merits; the entry of a nolle prosequi, followed by his discharge, is sufficient." Prior to that the court had said in another case (that of Fortman v. Rottier, 8 Ohio St. 548, 550) that the prosecution must have ended by an acquittal of the accused; but in that case that question was not raised, and was only incidentally stated. But in Douglas v. Allen, supra, Judge Williams says: It is not necessary, clearly ought not to be necessary, that the case should be terminated by an acquittal; because if that were true, and there was a nolle entered it would leave the party remediless, although he had a good case, although he had thus been wrongly dealt with. Attention was called to this in the argument of the case in this court by counsel for the defendant in error. Counsel for the plaintiff in error was inquired of if there was that defect in the evidence, and he answered he did not think that there was any direct proof of the prisoner's discharge, or plaintiff's discharge, but that that was conceded. Everybody assumed that that was so, overlooking the fact that in the trial his attention was called to it. A good many questions were asked by counsel for the plaintiff of the plaintiff when he was upon the stand. Questions which assumed he had been discharged. One of them is found on page 122. Q. "From ' the time of your arrest on the thirty-first day of August, 1900, until the time of your final discharge on the second of July, 1901, you may state to what extent by your travels hither and thither and your imprisonment your business was interfered with?". Now a good many questions of that sort were asked, and objections Lorain County.' to them sustained, and the court, on page 124, called attention of counsel to the fact that he was assuming that there was a final discharge of the plaintiff from the prosecution in Detroit, and said, "The question has in it," speaking of a question to which an objection had been made, and which was then being considered, "The question has in it, ‘And your final discharge,' you are assuming a thing that ought not to be in your question. Now I hold that the time that he spent in Detroit in the court, you may show those transactions; how long he was before the court, in the court room, the incarceration, in the hands of the officers, any of those things. I supposed you had covered all of that." Calling his attention to the fact that the only defect in his question he was asking was, he had failed so far to show any discharge or termination of the prosecution in Detroit. And still, after a careful search of this record all through, we can find nothing which squints toward that fact. The nearest is the assumption by counsel for plaintiff that he was finally discharged, and he was cautioned he must not ask that, because of the fact he failed to show it. And still the case went through and he did not show, and so far as we can find there was no effort to show there was a final discharge. That being true, it is not necessary to comment upon what the court said below, and the reasons why he took the case from the jury. It is enough to say he was justified in taking the case from the jury, for there could have been no verdict that could have been sustained for the plaintiff; there was not a scintilla of evidence upon this material point-that the prosecution was ended. That being true, without any discussion of the further questions, although in examining this question we have had to look the record through, and learned pretty nearly what there is in that record, but without any discussion as to any other question, that was fatal to the plaintiff's case, and justified the court in directing a verdict for the defendant, and the judgment is affirmed. Hale and Winch, JJ., concur. ***། Thornton v. Cincinnati. MUNICIPAL CORPORATIONS-ASSESSMENTS. [Hamilton (1st) Circuit Court, 1904.1 Giffen, Jelke and Swing, JJ. R. H. THORNTON V. CINCINNATI. 1. CONSTITUTIONAL LIMITATIONS UPON STREET ASSESSMENT MAY BE WAIVED. The constitutional limitation that special assessments against property abutting on a street improvement to pay the cost thereof must not exceed the benefits, may be waived by contract; or, the abutting owners may, by conduct in pais, estop themselves from pleading such limitation. Hence, where such owners severally and jointly agree, in a petition for a street improvement and under which it was made, to pay the assessment of a certain proportion of the construction and "irrespective of the number of owners of property signing this petition," they are thereby estopped from pleading that the assessments exceed the benefits, or that the owners of three-fourths of the abutting front feet did not join in the petition as required by Sec. 2272 Rev. Stat. Whether the improvement was made under Sec. 2272 Rev. Stat., or under the municipality's general grant of power, is immaterial. Birdseye v. Clyde (Vil.), 61 Ohio St. 27, distinguished. 2. MUNICIPALITIES HAVE POWER TO MAKE STREET IMPROVEMENTS WITHOUT PETITION OF ABUTTERS. The municipalities of this state have jurisdiction and power to make street improvements without the filing of a petition by abutting property owners therefor. ERROR to court of common pleas of Hamilton county. F. M. Coppock, A. T. Brown and O. W. Kuhn, for plaintiff. JELKE, J. The petition to the board of administration under which this improvement was made reads as follows: "We, the undersigned, owners of property represented by the feet front abutting upon Fairview avenue from the south end thereof to Straight street, hereby petition your honorable body for the improvement of said Fairview avenue between the points aforesaid, by asphalt pavement and granite curbs, the roadway to be forty feet in width, to such changed grade as your board may establish. And we respectively agree not to make any claim for damages on account of such changed grade, and for the assessment for the whole cost of such improvement except fifty per cent. of the entire cost of the improvement and the cost of intersections, to be made and collected in ten (10) equal annual installments; and in case the bonds of the city are issued in anticipation of the assessment thus petitioned for, then that the interest on said bonds be collected in ten (10) installments, the same and in like manner 3 O. C. C. Vol. 26 Hamilton County. as the assessment installments aforesaid, or that the interest installments be numbered and assessed according to the number of years the bonds may have to run. "And in consideration of the city's making said improvement, we and each of us further agree with each other and with said city, and we jointly and severally bind ourselves, to pay such assessment irrespective of the number of owners of property signing this petition.' Counsel for the city claim that by reason of signing this petition the signers thereof are estopped from setting up any statutory or constitutional limitation on the amount of the assessment and from claiming that such assessment should be anything less than acutal cost, or that the same exceeds the special benefits to their respective properties. Counsel for plaintiffs herein, signers of said petition, claim that they are not so estopped and rely upon the case of Birdseye v. Clyde (Vil.), 61 Ohio St. 27 [55 N. E. Rep. 169]. Special emphasis is laid upon the language of the Supreme Court on page 38: "And, it can hardly be supposed that the plaintiffs who signed the petition for the improvement intended thereby to donate their entire property to the public, or, what is practically the same thing, consent to an assessment that would amount to its confiscation. They evidently contemplated that some special benefit would accrue to them from the construction of the improvement, which could not possibly be the case if the substantial value of their property were taken to pay the assessment laid upon it. The petition must be construed in the light of this situation, and so as to effectuate the manifest intention of the parties." The improvement in the village of Clyde was made under a special act, 90 O. L. L. 434, which, among other things, provides: "Provided, however, that two-thirds of the cost for improving and paving any street, and of constructing a sewer under such paved part, for which said street improvement fund shall be used, shall be assessed on the real estate bounding and abutting thereon, and according to the foot frontage of the real estate so bounding and abutting as provided by the laws of the state of Ohio." The Supreme Court expressly holds that the reference to "the laws of the state of Ohio" brings Sec. 2270 Rev. Stat. into contemplation and makes it part of the body of law applicable to the improvement in the village of Clyde. Section 2270 Rev. Stat. provides a limitation of twenty-five percentum of the tax value of the property assessments. The Supreme Court does not deny the application of the doctrine of estoppel in Birdseye v. Clyde, supra, but says that the estoppel shall |