Plaintiff and Attorney Irion filed a response, asking the Court to compel PEP's compliance, strike the motion to quash, grant additional time to file a response for attorneys' fees and costs, allow them to depose Attorneys Pilkington, Bibb, and Grant regarding their affidavits for attorneys' fees, and award attorneys' fees to Plaintiff [Doc. 248]. They also argue that Attorney Pilkington does not have standing to bring the Motion to Quash [Id.]. PEP filed a reply, contending that neither the law nor any fact supports that it does not have standing to challenge the subpoenas [Doc. 252 p. 2]. It reiterates that Plaintiff served the subpoenas after the discovery deadline expired without leave of Court to conduct discovery and after the Court entered its final judgment

"`Actions for malicious prosecution have never been favored in law,' and we hardly think we have reached that guileless age in which we can afford to take down the bars." The principle of law and public policy announced in the Dunnington case has been approved in Price v. Cook, 120 Okla. 105, 250 P. 519, and in Bryan v. Lee, 123 Okla. 22, 252 P. 2. There is a greater reason for the application of the rule to a peace officer who is under a legal duty to enforce the law than there is to a private citizen who is under no such legal duty.

In Drakos v. Jones, 189 Okla. 593, 118 P.2d 388, it is stated: "* * * Ordinarily, one who institutes legal proceedings against another in good faith and upon the advice of a licensed attorney after a full and truthful disclosure of the material facts, within his knowledge or reasonably obtainable, concerning the controversy involved, may be said to have probable cause for so acting. Williams v. Frey, 182 Okla. 556, 78 P.2d 1052: Empire Oil Refining Co. v. Cambron, 172 Okla. 202, 44 P.2d 972; Bryan v. Lee, 123 Okla. 22, 252 P. 2; Mayer v. Goodman, 94 Okla. 12, 220 P. 656; El Reno Gas Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397. It is well settled, however, that if in his statements to the attorney said informer misrepresents or conceals such facts the doctrine does not apply and he cannot rely upon the attorney's advice to establish probable cause for his action. See Williams v. Frey, supra; General Motors Acceptance Corporation v. Davis, 151 Okla. 225, 7 P.2d 157; Empire Gas Fuel Co. v. Wainscott, 91 Okla. 66, 216 P. 141; Nelson v. Peterman, 119 Okla. 125, 249 P. 333; Allison v. Bryan, 50 Okla. 677, 151 P. 610. * * *"

" Other cases bearing on defendant's reliance upon advice of counsel and good faith are cited: El Reno Gas Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397; Bryan v. Lee, 123 Okla. 22, 252 P. 2; Roby v. Smith, 40 Okla. 280, 138 P. 141; Empire Oil Refining Co. v. Cambron, 172 Okla. 202, 44 P.2d 972; Sims v. Jay, 53 Okla. 183, 155 P. 615. In answer plaintiff says:

Ordinarily, one who institutes legal proceedings against another in good faith and upon the advice of a licensed attorney after a full and truthful disclosure of the material facts, within his knowledge or reasonably obtainable, concerning the controversy involved, may be said to have probable cause for so acting. Williams v. Frey, 182 Okla. 556, 78 P.2d 1052; Empire Oil Refining Co. v. Cambron, 172 Okla. 202, 44 P.2d 972; Bryan v. Lee, 123 Okla. 22, 252 P. 2; Mayer v. Goodman, 94 Okla. 12, 220 P. 656; El Reno Gas Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397. It is well settled, however, that if in his statements to the attorney said informer misrepresents or conceals such facts the doctrine does not apply and he cannot rely upon the attorney's advice to establish probable cause for his action.

Where a full and fair disclosure of the material facts has been made to reputable attorneys and the affiant acted on their advice, it negatives the absence of probable cause. Bryan v. Lee, 123 Okla. 22, 252 P. 2. The advice of reputable counsel, honestly sought and acted on in good faith, is alone a complete defense to an action for malicious prosecution.

It is argued that the ordinance upon which the complaint is based was unconstitutional, and furthermore that it had no application to the facts of which complaint was made in the prosecution, and, therefore, that such prosecution would be malicious as a matter of law. It has been held that where the attorney, a public officer advising, and the person accepting the advice, are in good faith, and such person relies on the advice of such attorney and participates in the prosecution, any error of the attorney that may be made in good faith is immaterial in considering the question of the existence of probable cause. (38 C. J. 403; Bryan v. Lee, 123 Okla. 22, 252 P. 2.) It is next argued that because of the alleged malicious motive on the part of Catts and his employer in causing the prosecution to be instituted, such would be sufficient to sustain the action regardless of the existence of probable cause.

It has been held in a number of cases by this court that in a suit for malicious prosecution, where the facts are undisputed, the question of whether or not the plaintiff has shown want of probable cause is one for the court rather than for the jury. It is said in the case of Bryan v. Lee, 123 Okla. 22, 252 P. 2: "Plaintiff's contention upon the element of probable cause is, in substance and effect, that he should have been permitted to argue this question to the jury, and that the jury, instead of the court, should have determined the existence or nonexistence of probable cause in the trespass prosecution.

Second. Malice may be inferred or implied, in an action for malicious prosecution where there is proof of want of probable cause. Bryan v. Lee, 123 Okla. 22, 252 P. 2. Third. The existence or want of evidence tending to show the presence or absence of probable cause is a question of law to be determined by the court.

The burden was upon plaintiff to prove the absence of probable cause for the criminal prosecution. Bryan v. Lee, 123 Okla. 22, 252 P. 2; Dunnington v. Loeser, 48 Okla. 636, 149 P. 1161; 150 P. 874; Robertson v. Gibson, 62 Okla. 306, 162 P. 1120; Hopkins v. Stites, 70 Okla. 177, 173 P. 449; First State Bank v. Denton. 82 Okla. 137, 198 P. 874. He has failed to meet this burden. Statements made to the officers by Baxter and Mooney, and the note addressed to Downing by plaintiff, were sufficient showing of probable cause to authorize the arrest of plaintiff.