Appeals, Nos. 131, 132 and 133, March T., 1951, from judgments of Court of Common Pleas of Butler County, Sept. T., 1950, Nos. 4, 5 and 6, in cases of Earl Byers v. Edward F. Ward et ux., and James Byers v. Same and Robert Byers v. Same. Judgments reversed.
James E. Marshall, with him John H. Marshall, Armand R. Cingolani and Marshall & Marshall, for appellants.
Lee C. McCandless, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The three appeals are by a father and his two sons (plaintiffs) from a judgment by the court below sustaining preliminary objections to the complaint and amendment in trespass for false arrest, in a criminal proceeding instituted by a husband and wife (defendants). The grand jury returned a true bill. Upon trial the defendants (plaintiffs herein) were acquitted and the costs were imposed on the prosecutors (defendants herein). The court below, as matter of law, decided that there existed probable cause for the criminal prosecution. It reached this conclusion solely upon the ground that the grand jury had returned a true bill. In entering the judgment sustaining the preliminary objections of defendants to plaintiffs' complaint, the court stated that its decision was based "... alone on the return of the Grand Jury." The appeals followed.
Defendants, Edward F. Ward and Catherine S., his wife, in 1949 were owners of land adjoining land owned by plaintiff, Earl Byers. It was claimed by the Wards
that coal under their land had been illegally removed by Earl Byers and his two sons (plaintiffs herein). Defendants caused warrants to be issued for the arrest of the plaintiffs, charging them with stealing the coal.
The plaintiffs' complaint in trespass charged that the arrests were made without just or probable cause. In addition to the above facts, it is stated in the complaint: "The plaintiff further avers that all of said prosecution was brought without any just or probable cause and wholly without any basis or reason, and defendants used the processes of the criminal law for the purpose of forcing the plaintiff to give the defendants a Lease upon the coal on plaintiff's land for mining and stripping purposes at a price of ten cents (10) a ton when he was receiving for himself on the farm immediately adjoining plaintiff, the sum of twenty-five cents (25) a ton for his coal which was being stripped."
In the amendment to the complaint (which the court allowed and directed to be filed), it is stated: "That the holding of the plaintiff at the hearing before the Alderman and at the hearing before the Grand Jury was unfairly obtained and was obtained by fraudulent and false testimony and by the presentation of false maps and perjured testimony....
"That the defendant proceeded with the prosecution in Court well knowing that his original maps were false and after having been informed by two of his own expert witnesses that there was no basis for the prosecution, and it was instituted for the express and illegal purpose of ...