Creelman v. Svenning

— The question presented is whether there is any liability by the county and the state for a malicious prosecution by a prosecuting attorney.

For a speedy determination of that question, we make two assumptions: one, that the prosecutor has maliciously and without just cause prosecuted the plaintiff; second, that the position of the prosecutor is such that both the county and the state could be responsible for his tortious conduct.

We wish to make it clear, beyond question, that the first assumption involves a question of fact which has not been determined by any trier of the facts; and the…