In short, malice and want of probable cause are essential elements in an action for malicious prosecution. Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114; Kable v. Carey, 135 Ark. 137, 204 S.W. 748, 12 A.L.R. 1227; Keebey v. Stifft, 145 Ark. 8, 224 S.W. 396; Wm. R. Moore D.G. Co. v. Mann, 171 Ark. 350, 284 S.W. 42; Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68."
The Farm Service Cooperative might well have some cause against Goshen Farms as to the first suit as it was terminated in its favor but such suit would have to be a separate cause of action in another suit. Lack of probable cause in the first suit must be proved independently of the element of malice Gazzola v. New, 191 Ark. 724. The essential elements for the tort of malicious prosecution are:
NEW TRIAL — REPRESENTATION OF MOTION — TIME FOR TRIAL COURT TO ACT. — It is mandatory, under the applicable statute, that a motion for a new trial be presented within thirty days; and ordinarily the subject-matter will be disposed of immediately; but there may be extraordinary circumstances where conditions over which the movant has no control delays such submission, and where, because of the nature of the question raised it is necessary to take proof or for the judge, in other respects, to consume time in reaching essential merits. In such instances (see Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68) a reasonable delay beyond the 30-day period will not deprive the court of jurisdiction; but a protracted inaction for four months was not contemplated by the statute, or by the opinion to which reference has been made. Prohibition to Chicot Circuit Court; John M. Golden, Judge; writ granted.
Neither probable cause nor malice in instituting the proceeding has been established. 52 Am.Jur.2d, Malicious Prosecution, § 6; Kable v. Carey, 135 Ark. 137, 142, 204 S.W. 748; Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68, 71. The Court further concludes that from the record and the testimony produced in the case that the elements essential to sustain an action for abuse of process have been shown.
In short, malice and want of probable cause are essential elements in an action for malicious prosecution. Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114; Kable v. Carey, 135 Ark. 137, 204 S.W. 748, 12 A.L.R. 1227; Keebey v. Stifft, 145 Ark. 8, 224 S.W. 396; Wm. R. Moore, D.G. Co. v. Mann, 171 Ark. 350, 284 S.W. 42; Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68."
Second, there can be no serious question as to the existence of probable cause to suspect that appellant had committed a crime. Gazzola v. New, 191 Ark. 724, 87 S.W.2d 268 (1935). That was the opinion of the Houston police, of appellees attorney and of the deputy prosecuting attorney.
Only when the facts relied upon as constituting probable cause are undisputed, then the question becomes one of law and should not be submitted to the jury. Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68 (1935); and Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735 (1907). However, appellant recognizes that where a factual dispute exists "it is generally for the jury to determine the truth and whether a justification is established" for prosecution.
In short, malice and want of probable cause are essential elements in an action for malicious prosecution. Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114; Kable v. Carey, 135 Ark. 137, 204 S.W. 748, 12 A.L.R. 1227; Keebey v. Stifft, 145 Ark. 8, 224 S.W. 396; Wm. R. Moore D. G. Co. v. Mann, 171 Ark. 350, 284 S.W. 42; Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68. At the close of the testimony, each defendant moved for an instructed verdict; and the question presented is, whether the evidence was sufficient to take the case to the jury, either (1) as against Mendenhall, or (2) as against Garvan and Malvern. We discuss these points separately.
See Thomas v. State, 136 Ark. 290, 206 S.W. 435, where it was held that statutory provisions relating to new trial in civil cases had no application to criminal cases. [For construction of rule applicable to new trial in civil cases, see Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68; Chicago, Rock Island Pacific Railway Company v. McCoy, Administrator, ante, p. 596, 157 S.W.2d 761; Mays v. C. M. Johnston Sons Sand Gravel Company, ante, p. 779, 158 S.W.2d 910. Act 201, approved March 5, 1937 (Acts 1937, p. 1384), provides that circuit courts shall "always" be in session, subject to certain limitations.
The provision is that the application may be presented, upon reasonable notice given the opposing party, to the judge who presided when the verdict or decision was rendered, or to his successor in office, wherever he may be found, at any time within thirty days from the date the verdict or decision was rendered; and as the presentation was not made in the instant case within thirty days it was not in apt time, and, as was said in the Spivey case, supra, appellant is in the same attitude he would be in if he had permitted the term to lapse without having filed a motion for a new trial or of having had the same passed upon by the court during the term at which it was filed. The holding in the Spivey case was reaffirmed in the case of Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68, with a qualification not impairing the holding that the motion must be presented to the trial judge within thirty days from the date the verdict or decision was rendered. In the Gazzola case the motion was presented to the judge within the thirty days provided by statute; but it was done without notice to the opposing party or his attorney.