(180 N.W.) STATE v. GABRIEL. (No. 4747.) (Supreme Court of South Dakota. Dec. 1, 1920.) Appeal from Circuit Court, Meade County; James McNenny, Judge. Edward Gabriel was convicted of an offense, and from the judgment, and an order denying new trial, he appeals. Reversed and remanded, with directions. Harry P. Atwater and H. M. Lewis, both of Sturgis, and Henry Frawley, of Deadwood, for appellant. Byron S. Payne, Atty. Gen., for the State. WHITING, J. The issue upon this appeal is identical with that presented by the record in State v. Thompson, 180 N. W. 73, just decided by this court. For the reasons stated in our opinion in that case, the judgment of the trial court and its order denying a new trial are reversed, and this cause is remanded to that court, with directions to call in another circuit judge to try said cause. McHUGH v. RIDGELL. (Supreme Court of Nebraska. (No. 21174.) (Syllabus by the Court.) 1. Malicious prosecution cause question of law. 71(2) - Probable Whether the facts and circumstances established by uncontradicted evidence amount to probable cause in an action for malicious prosecution is a question of law for the court, and not an issue of fact for the jury. 2. Malicious prosecution cause defined. J. B. Barnes, and Geo. W. Ayres, both of Lincoln, and Harvey M. Johnsen, of Omaha, for appellant. Geo. A. Adams, of Lincoln, for appellee. ROSE, J. This is an action to recover damages in the sum of $10,125 for malicious prosecution. Plaintiff recovered a verdict and a judgment thereon for $1,500, and defendant has appealed. The first assignment of error is that the verdict is not supported by the evidence, and is contrary to law. Both the facts and the law which control the decision are thus presented. While plaintiff and her brother were conducting a laundry in a leased building in Lincoln, an incendiary fire was started in the laundry at night June 29, 1918. Both were charged by defendant with the felony, and were bound over to the district court after a preliminary hearing before a justice of the peace, who found probable cause for the prosecution. In the district court the county attorney charged them with the same felony, but afterward dismissed the prosecution as to plaintiff. Her brother was tried and acquitted. Plaintiff had not been taken to prison, but had given bond to appear in court to answer the charge of arson. When defendant made the initial complaint he was deputy fire commissioner of the state. As such, it was his statutory duty to investigate the cause, origin, and circumstances of every fire occurring in the city of Lincoln. Rev. St. 1913, §§ 2501, 2502. After due investigation and the collection of necessary data, he was directed by law, among other things, as follows: "If he shall be of the opinion that there is evidence sufficient to charge any person with 18(1) - Probable the crime of arson, he shall cause such person to be arrested and charged with such offense." Rev. St. 1913, § 2503. Such facts and circumstances as would lead an unprejudiced person of ordinary prudence and intelligence to believe that accused is guilty of a crime which some one has in fact committed constitute probable cause for a criminal prosecution. In the action for malicious prosecution, defendant pleaded his privileges as a public officer, prosecution in good faith, full disclosure to, and advice of, the county attorney and probable cause. After a thorough ex 3. Malicious prosecution 18(1)-Undisputed amination of the record and the law ap facts held to show probable cause as matter of law. The undisputed facts and circumstances outlined in the opinion held to show probable cause for the prosecution of accused for arson as a matter of law. plicable to undisputed facts, it has been found necessary to discuss only the defense of probable cause. [1] Whether facts and circumstances established by uncontradicted evidence amount to probable cause for a criminal prosecution Appeal from District Court, Lancaster is a question of law for the court, and not County; Stewart, Judge. an issue of fact for the jury. This is not only the law of Nebraska, but is a generally accepted rule. Turner v. O'Brien, 5 Neb. 542; Dreyfus v. Aul, 29 Neb. 191, 45 N. W. 282; Nehr v. Dobbs, 47 Neb. 863, 66 N. W. 864; Bechel v. Pacific Express Co., 65 Neb, Action by Helen M. McHugh against William S. Ridgell, revived on the death of defendant in the name of Olive M. Ridgell, administratrix. Judgment for plaintiff, and defendant appeals. Reversed and dismissed. 826, 91 N. W. 853; Bank of Miller v. Rich For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mon, 68 Neb. 731, 94 N. W. 998; Clark v. Folkers, 1 Neb. (Unof.) 96, 95 N. W. 328; and other cases cited in note in L. R. A. 1915D, 5-8 (Michael v. Matson, 81 Kan. 360, 105 Pac. 537). The principle of law applicable has been stated in this form: "In an action for malicious prosecution where there is sufficient in undisputed evidence to show probable cause, the trial court should direct a verdict for the defendant." Bechel v. Pacific Express Co., 65 Neb. 826, 91 N. W. 853. [2] This doctrine is founded on public policy, and is essential to the welfare of society. Those who feloniously destroy property, and thus endanger lives, should be brought before the bar of justice. Individuals and officers having knowledge of felonies should not be unnecessarily deterred from becoming informers by the fear of incurring liability for damages for malicious prosecution. The law recognizes the interests of the state and the proper protection of its informers, as well as the rights of individuals charged with crime. The guilt of accused is not the legal test of probable cause. Such facts and circumstances as would lead an unprejudiced person of or dinary prudence and intelligence to believe that accused is guilty of a crime which some one has in fact committed constitute probable cause as a matter of law. The language of the law is that "what facts and whether particular facts amount to probable cause is a question of law." Where uncontradicted evidence thus shows probable cause, the jury should not be allowed to speculate on the issue. [3] Testing the conduct of defendant by the principles of law stated, what are the undisputed facts and circumstances which prompted him to accuse plaintiff of arson? The fire department was called about 3 o'clock in the morning, and extinguished the fire before the laundry or the building was destroyed. The chief of the fire department promptly notified defendant of the fire, and requested an official investigation, which was made the same morning. Defendant did not know plaintiff or her brother, and was therefore unprejudiced at the time. When the fire department arrived, the doors of the laundry were locked, and there was a fire in the interior. A barrel of waste paper, saturated with gasoline, had been left near the center of the main floor, and another on the second floor. Both barrels had been partially consumed. Two or three kerosene cans had been left in the laundry, and there was an unusual amount of oil there. There was conclusive evidence of arson. Plaintiff and her brother admitted they had been in the laundry as late as 11:30 the night of the fire, and that they left the building together. The laundry was an insolvent enterprise. Its property had been recently attached for debt. It was valued at $4,093.70, according to an inventory jointly made by an underwriter, defendant and others. The fire insurance aggregated over $12,000. A policy of $8,000 had been issued the day before the fire. Plaintiff and her brother, the latter being owner, operated the laundry together. Both were unmarried and occupied the same home. Plaintiff received no stated salary, but her brother provided her with a living and with whatever money she needed. With the exceptions of plaintiff and her brother there was nothing to indicate that any one had a motive for committing the arson, and there was no incriminating circumstance connecting any one else with it. It is shown by uncontradicted evidence that defendant had knowledge of these undisputed facts and circumstances before he accused plaintiff of the arson, and they establish probable cause as a matter of law. By other proofs probable cause did not become an issue of fact. In the office of defendant as deputy fire commissioner, plaintiff had an opportunity to tell her own story, and she there denied participation in, and knowledge of, the starting of the fire. She also gave references to persons whom she said would vouch for her good character. On the wit ness stand she testified that defendant threatened to arrest her if she did not confess her guilt, but this latter statement was positively denied by defendant. Accepting, however, all of the testimony in her behalf as verity, it does not raise a question of fact on the issue of probable cause. Denial of guilt is often found in the pleas and in the testimony of accused persons who are convicted by circumstances which speak louder than words. The facts and conditions outlined herein, notwithstanding the denial, justified an honest belief that plaintiff, though innocent, participated with her brother in the arson. A threat to arrest defendant if she did not confess would imply a belief in her guilt, and that belief, as already explained, is justified by facts and circumstances proved by evidence not disputed. Defendant was not responsible for the incriminating incidents pointing to plaintiff's guilt. Plaintiff did not make a case for the consideration of the jury, and the verdict is not supported by the evidence. It is contrary to law. For the reasons stated, the judgment of the district court is reversed, with directions to dismiss the action at the costs of plaintiff in both courts. Reversed and dismissed. (180 N.W.) October 11, 1919, a motion, accompanied by BARKLEY et al. v. POOL, Secretary of State affidavits, was filed in the district court "for (COWIN et al., Interveners). (No. 21370.) an order directing the clerk of the district court to have the costs in said action taxed as (Supreme Court of Nebraska. Nov. 10, 1920.) per said affidavits, and the amounts thereof 1. Costs (Syllabus by the Court.) 208-Taxation of costs by clerk of district court is ministerial. In the taxation of costs the clerk of the district court acts ministerially. 2 Costs 208-Clerk of district court may tax costs after term and within a reasonable time. Where a judgment for costs was rendered against defendants, but the items of costs were not taxed by the clerk before the final adjourn ment of the term of court at which the judgment was rendered, he may tax the costs afterwards within a reasonable time, and before the payment of the judgment. 3. Costs 208-Motion to tax costs adjudicated may be acted upon after the judgment term. In such case a motion for an order to the clerk to tax costs does not require the opening or modification of the judgment, and the court has jurisdiction to act upon the motion at a subsequent term of court from that at which the judgment was rendered. inserted in the entry of judgment in said ac tion." The intervening defendants appeared specially, and objected to the jurisdiction of the court with respect to the motion, for the reasons that the final decree had been entered during the January term of court; that the April term had been held and had adjourned, and the September term had begun when the motion was filed, and therefore the court had lost jurisdiction. The objections were overruled. No further appearance being made, the court ordered the clerk to tax the costs as set forth in the affidavits. Afterwards a motion was filed for an order, directing the clerk of the district court to correct an error and tax as costs the amount set out in the affidavit as having been paid to the special examiner for services in the action and not yet taxed. This motion was also sustained. Defendants have appealed from both orders. [1-3] In the brief of appellants some argument is directed to the insufficiency of the affidavits as evidence, but no objection, except as to jurisdiction, was made at the hearing, or in the motion for a new trial. Not having Appeal from District Court, Lancaster been raised below, the point cannot be conCounty; Morning, Judge. Action by Edna M. Barkley and others against Charles W. Pool, Secretary of State, John C. Cowin, and others, intervening defendants. Judgment for plaintiffs, with an order that the costs be paid, one-half by the secretary of state and one-half by the interveners, and after an affirmance by the Supreme Court, plaintiffs moved in the district court for an order directing the taxing of costs, which were ordered to be taxed, motion of the intervening defendants for an order to correct the error was denied, and they appeal. Affirmed. Fawcett & Mockett, of Lincoln, and John L. Webster, L. F. Crofoot, and Byron G. Burbank, all of Omaha, for appellants. T. J. Doyle and C. A. Sorensen, both of Lincoln, and F. A. Brogan, of Omaha, for appellees. LETTON, J. The controversy in this case is over the taxation of costs. In January, 1919, the district court rendered a decree "that the costs of this action shall be paid, one-half by the secretary of state and one half by the interveners herein, and plaintiffs are hereby given judgment against said defendant and interveners for costs of this action." An appeal was taken on the merits of the case, and on January 28, 1919, the decree was affirmed by this court. 173 N. W. 600. On sidered here. The real contention of appellants is that the court was without jurisdiction to act after the adjournment of the term at which the original judgment was rendered. We think this position is unsound. By the judgment the court directed the defendants to pay the costs. The only thing left to be done was the ministerial duty of the clerk to ascertain and enter the amount. In a number of states the manner of taxing costs is regulated by statute, and the fee bill must be presented to the clerk, or taxing official, at the same term at which the judgment is rendered, and within a specified number of days. There is no statute in this state governing the matter. We have held that where the costs are made a part of the judgment or decree, it can only be opened up and mistakes corrected in the manner provided for opening judgments. Olson v. Lamb, 61 Neb. 484, 85 N. W. 397. We have also held that where the costs have been erroneously taxed by the clerk, a motion to retax the same may be made at a subsequent term of court. Smith v. Bartlett, 78 Neb. 359, 110 N. W. 991. In this case it is said that the court by making such an order does not change the judgment awarding costs, but uses its power to see that the award of costs is not improperly or illegally taxed, and that a mistake made by the clerk in taxing the fees in favor of or against a party may be corrected by the court on motion at any time. The purpose of the motion was not to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes change or modify the judgment or to retax the costs; it was to tax them in the first instance. The clerk had failed to tax the costs at the time of the original decree. This is not an uncommon occurrence. It is not infrequent that sheriffs', referees', or receivers' costs, or the cost of taking care of attached property, are not known at the time of the final judgment. If costs must be taxed at the same term as the final judgment, in many counties in the state it would frequently be very inconvenient, and sometimes impossible, to tax all items of costs in a case which had occupied the attention of the court up to the time of final adjournment. If after the cost bills are presented to the clerk, he refuses or fails to tax any particular item, or taxes the costs improperly, a motion may be made to retax. Since no statute prohibits this, it can be done within a reasonable time, and before the payment of the judgment. The following cases are in conformity with the views herein expressed: Fairbairn v. Dana, 68 Iowa, 236, 26 N. W. 90; Frankel v. Chicago, B. & Q. R. Co., 70 Iowa, 424, 30 Ν. W. 679; Fisher v. Burlington, C. R. & N. R. Co., 104 Iowa, 588, 73 N. W. 1070; Big Goose & Beaver Ditch Co. v. Morrow, 8 Wyo. 537, 59 Pac. 159, 80 Am. St. Rep. 955; Citizens' Nat. Bank v. Gregg, 53 Neb. 760, 74 N. W. 273; Barber's Estate, 11 Pa. Co. Ct. Rep. 242. It may be well to say, however, that such proceedings as were had in this case are not to be commended. Parties desiring to recover costs expended by them should furnish the clerk with the proper and legal evidence of the expenditures, such, for example, as the returns made by the several officers who have executed process, showing the fees and mileage to which they are entitled; also the per diem and mileage of witnesses should be noted by the clerk, or, if their testimony is taken by deposition, or before a referee, it should be set forth in the return of the officer. In other words, the clerk should have the legal evidence before him when he acts. Affirmed. services and incurred expense in the course of his employment before his authority was canceled, the principal will be liable therefor, unless it is otherwise provided by the terms of their agreement." Hallstead v. Perrigo, 87 Neb. 128, 126 N. W. 1078. 2. Brokers 46-Exclusive agency held not to preclude owner from selling; sale by own. er revokes agent's power; sale by owner held not to annul agreement for compensation. Even though a real estate broker's contract, not coupled with an interest, gives him the exclusive agency to sell the land, the owner of the land is not thereby precluded from selling it himself without the aid or knowledge of the broker; and, while a sale by the owner necessarily operates to revoke the agent's power to sell, it does not, under such a contract as in this case, annul the agreement for compensation. Hallstead v. Perrigo, supra, and Maddox v. Harding, 91 Neb. 292, 135 N. W. 1019, explained and followed. 3. Brokers 46-Owner held liable for compensation, where broker had procured purchaser before notice of sale by owner. In such case, if the broker, before he has notice or knowledge of the sale by the owner, has performed his part of the contract in good faith, by securing a purchaser to buy the land on the terms fixed by the owner, the owner is liable to the broker for the compensation stipulated in the contract. Appeal from District Court, Merrick County; Button, Judge. Action by Louis C. Staats against Henry Mangelsen. Judgment for defendant, and plaintiff appeals. Reversed and remanded for a new trial. MORRISSEY, C. J., and FLANSBURG, J., "9/28 (1917). I hereby employ L. C. Staats not sitting. STAATS v. MANGELSEN. (No. 21128.) (Supreme Court of Nebraska. Nov. 10, 1920.) (Syllabus by the Court.) 1. Principal and agent 41 - Principal liable for services and expenses incurred by agent before cancellation of mere naked authority. * * * sole and exclusive agent to sell or exchange my farm or ranch of 160 acres. Legal numbers S. W. 4, section 14, township 15, range 5. Price, $125 per acre. Cash, $12,000; balance 5 years. Int., 5%. Commission to be $800. Agreement to run 3 months from date and thereafter until withdrawn from the market. I also agree to give warranty deed and abstract showing clear title to above-described land, I hereby authorize and empower my agents above named to make, execute, and deliver in my name such written contract as they may deem necessary to close a sale of the premmoved the court to direct a verdict in his favor of no cause of action. The court overruled this motion, and, in doing so, stated to defendant's counsel that, if the case were "Where an agent is vested with a mere ises on the foregoing terms with any purnaked authority, not coupled with an interest, chaser thereof. Owner: H. Mangelsen. Agent: his principal may revoke that authority before L. C. Staats. Witness: Geo. E. Bockes. $2,performance; but, if the agent has rendered 000 to be paid on contract till March 1st." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (180 N.W.) Trial was had to court and jury. At the daughter informed Mr. Bockes that they had close of plaintiff's evidence, the defendant sold the place to another party. Then Bockes and Nauman returned to town. The fact was that the defendant himself had sold his farm to Clarence E. Lawson on January 9, 1918, but had not notified either the plaintiff or Mr. submitted on the evidence then received, and Bockes of the sale, and neither of them the defendant would rest his case, the court had any knowledge of it. No notice was ever would render judgment in favor of the plain-given by the defendant of a withdrawal of tiff for $56 only. Thereupon the defendant the farm from the market. It is established that on January 16, 1918, Dr. Nauman was ready, able, and willing to buy the farm on the terms fixed by the defendant. The plaintiff testified that the reasonable value of his services in procuring the purchaser was $800. rested his case, and the court directed a verdict in favor of the plaintiff for $56, and both parties excepted to the ruling. Each party filed a motion for a new trial, and both motions were overruled. Each party excepted to the ruling, and was allowed the usual time in which to prepare and serve a bill of exceptions. Plaintiff appeals, and asks that judgment be rendered in his favor in this court for $800 and interest and costs. De- prevented from completing the sale solely Upon this state of facts the plaintiff contends that, as he had within the time fixed procured a purchaser ready, able, and willing to buy the land on the terms stated, and was fendant filed no formal cross-appeal, but sets by reason of the owner of the land having out formal assignments of error in his brief, previously sold it without notice to him, and asks that the judgment against defendant for $56 be reversed, "but that the action of the lower court in otherwise directing the verdict against the plaintiff should be sustained." Plaintiff contends that the trial court erred in directing the verdict for only $56, claiming that it should have been for $800. Defendant he is entitled to recover the sum fixed in the agency contract-citing, among other cases, Hallstead v. Perrigo, 87 Neb. 128, 126 N. W. 1078, to sustain his contention. The defendant, on the other hand, insists that his sale of the land revoked the agent's power to sell the land, and that therefore the defendant is not liable for anything either by way of urges that the evidence was not sufficient to compensation or damages, citing Hallstead v. warrant the court in directing a verdict Perrigo, supra, Woods v. Hart, 50 Neb. 497, against him for any amount. These conten- 70 N. W. 53, Miller v. Wehrman, 81 Neb. 388, tions require an examination of the evidence, which may be briefly stated as follews: The plaintiff, Louis C. Staats, had been in the real estate business for nine years, with his office at Central City, and George E. Bockes, who signed the contract as witness, was his employee, assisting to carry on the business. The defendant, Mangelsen, was the owner of the land described. On September 28, 1917, the broker's contract hereinbefore set out was entered into. Thereafter, and before December 28 of that year, plaintiff showed defendant's farm to different people whom he regarded as possible purchasers, using hired automobiles part of the time and his own car part of the time for that purpose. On January 1, 1918, the plaintiff, accompanied by Mr. Bockes, took Dr. E. H. Nauman, of Columbus, Neb., out to defendant's farm, showed it to him, and discussed a sale of it to Nauman. The defendant was present and participated in that discussion. No agreement was made at that time, and Dr. Nauman went home. On January 16, 1918, Dr. Nauman returned to Central City, having decided to buy the farm on the terms stipulated in the contract. The plaintiff himself was temporarily absent in Texas at this time, but Mr. Bockes was in charge of the business in his absence, and drafted a contract for the sale of the land to Dr. Nauman on the terms stated, and took him out to the farm to have the defendant, Mangelsen, sign the contract. The defendant was not at home, but his 115 N. W. 1078, Maddox v. Harding, 91 Neb. 292, 135 N. W. 1019, and Buck v. Hogeboom, 2 Neb. (Unof.) 853, 90 N. W. 635, among other cases, to sustain his contention. [1] There is no doubt that when an agent has a mere naked authority to sell land, and such authority is not coupled with an interest, the land owner may revoke the authority at any time. Miller v. Wehrman, Maddox v. Harding, and Woods v. Hart, supra. And even where a land owner by written contract gives an agent the exclusive agency to sell his land, the owner is not thereby precluded from selling it himself without the broker's aid or knowledge. Hallstead v. Perrigo, supra; Buck v. Hogeboom, supra. [2] These propositions, that the landowner may at will revoke a naked agency for the sale of his land, and may himself sell it, notwithstanding an exclusive agency contract, are well settled in this state by the cases cited. But it does not follow, as contended by the defendant in this case, that no liability attaches to the landowner for services performed or expense incurred by the agent before he had notice or knowledge of the revocation or sale. The agent's power to sell the land may be revoked by operation of law when the owner sells it, or it may be revoked by the owner exercising the right to do so; but in neither case does it necessarily deprive the agent of his right to compensation. The power to sell may be revoked, and yet the agreement to compensate remain in |