Franzen v. Shenk

WILBUR, O. J., Dissenting.

I dissent. As the case involves an important question concerning the relative functions of court and jury in eases of malicious prosecution, the grounds of my dissent will be somewhat fully stated, and such statement will involve some repetition of the facts as stated in the main opinion.

The trial court instructed the jury to bring in a verdict in favor of the defendant and the plaintiff appeals from that judgment. The defendant had sworn to an affidavit charging the plaintiff with being insane, that is to say, so far disordered in her mind as to endanger health,…