On June 3, 1903, the defendant Reavis, who then held the offices of marshal and street commissioner of the village of Battle Creek in this state, with the assistance or encouragement, as it is alleged, of the defendants Miller and Kilbourn, and without warrant or process, seized the person of the plaintiff and cast him into the village jail, detaining him there for the space of two hours. At the end of that time Reavis hauled the plaintiff and another before a justice of the peace of the county, before whom he filed a written 'complaint of which the following is a copy ; “The State of Nebraska, Madison County, ss.: The complaint of W. F. Reavis, village marshal of said county, made before me, E. G. Dennis, a justice of the peace in and for said county, who, being duly sworn, deposes and says that on the 3d day of June, 1903, in the county of Madison state of Nebraska, Church Boyer and Munsey Hackley *207comité a missdemeahor for interfearing and obstructin the public highway by filling up a ditch on said highway. Affiant further states that Church Boyer and Munsey Hackley committed the offense. W. F. Reavis. Subscribed in my presence and sworn to before me this 8 day of June, 1908. E. G-. Dennis Justice of the Peace.” A hearing of the complaint was postponed until the 5th of the month, until which time the prisoners were permitted to go at large, as the justice’s docket recites, on their own recognizance. On the 5th the docket recites that the parties appeared, and the matter was further continued until the 8th, until which time the prisoners seem to have been at liberty without recognizance, the same not appearing to have been continued or renewed, and no document or acknowledgment in the form of a recognizance was filed with the. justice or entered upon his docket at any time during the pend-ency of the proceeding before him. On the 8th a written motion to dismiss was filed by the defendants in that matter, and thereafter appears the following docket entry: “The motion of the defendants was overruled by the court and the cause was submitted, and upon the evidence before me I find that Church Boyer and Munsey Hakley was gilty of the charge maid in the complaint and I fixt their fine at $2 each and costs fixt $11.95.” On the same day the plaintiff herein and Boyer entered into a recognizance with sureties in the sum of $200 for their appearance at the next term of the district court of the county, and remained at liberty. At a subsequent term of the last named court, to wit, on the 14th day of March, 1905, the proceeding was dismissed. This suit, which was begun May 25, 1905, is described by counsel for plaintiff in his brief as “an action to recover damages for malicious prosecution, false imprisonment and assault and battery.” The answer is a general denial and a plea of the statute of limitations. There was a verdict and judgment for the defendants, from which the plaintiff appealed.
The arrest was without process, and in his motion be*208fore the justice of peace to dismiss the proceeding the plaintiff correctly contended that the written complaint described no offense against the statutes of the state, or, so far as the record discloses, against the ordinances of the village. The whole transaction was therefore coram non judice, and in violation of law. With respect to that proceeding the marshal was not a police officer, and the justice was not a magistrate. There was no malicious prosecution, nor any prosecution at all. There was simply a false imprisonment. The plaintiff’s cause of action arose on the instant of his arrest, and the statute of limitions, which is of one year (code sec. 13), began to run the moment he was set at liberty. If he had been subsequently arrested, a new cause would have arisen. There is a clear distinction between an action for a false imprisonment and one for a malicious prosecution. “The distinction is that false imprisonment is some interference with the personal liberty of the plaintiff which is without authority. Malicious prosecution is in procuring the arrest or prosecution under lawful process on the forms of law, but from malicious motives and without probable cause.” Herzog v. Graham, 9 Lea (Tenn.), 152. “An action for a malicious prosecution can only be supported for the malicious prosecution of some legal proceedings, before some judicial officer or tribunal. If the proceedings complained of are extra-judicial, the remedy is trespass, and not an action on the case for a malicious prosecution.” Turpin v. Remy, 3 Blackf. (Ind.) 210; Colter v. Lower, 35 Ind. 285, 9 Am. Rep. 735; McConnell v. Kennedy, 29 S. Car. 180; Cunningham v. East River E. L. Co., 60 N. Y., Super. Ct. 282. Where the magistrate has no jurisdiction of the offense of which the plaintiff was accused, the proceedings before him are of no legal force or validity, and they therefore afford no sufficient basis to sustain an action for malicious prosecution. Bixby v. Brundige, 2 Gray (Mass.), 129. The authorities seem to be nearly or quite all to the same effect.
In addition to the foregoing, it does not seem that the *209justice pronounced any judgment against the plaintiff. He found him “gilty,” and “fixt” his fine at $2 and costs, but he did not adjudge that the state have or recover any sum, or that the plaintiff be committed or imprisoned. Preuit v. People, 5 Neb. 377; Miller v. Burlington & M. R. R. Co., 7 Neb. 227.
The following opinion on rehearing was filed December 18, 1907. Former judgment of affirmance as modified adhered to: 1. Appeal: Objections: Waiver. Where an objection to the introduction of the plaintiff’s evidence is sustained on the ground of a defect in his petition, a'nd he afterwards obviates the objection by filing an amended petition, he will be held to have waived his exception, if any, to the order sustaining such objection. 2. Pleading: Order: Review. Where a plaintiff asks leave to amend his petition, “either by interlineation or by filing such other pleading as the court may order,” and complies without objection •or exception with an order requiring him to file an amended petition, he cannot afterwards complain of such order. 3. Malicious Prosecution: Defenses. If a person maliciously, and without probable cause, procures or instigates a criminal prosecution against another, he cannot defeat an action for malicious prosecution by setting up the invalidity of his complaint, or a defect in the judgment or proceedings. 4. -: Limitations. The statute of limitations in such a case does not begin to run until the criminal case is dismissed, or the prosecution otherwise finally terminated.*209This action was begun nearly two years after the happening of the assault and battery and false imprisonmem complained of, and is therefore barred. We therefore recommend that the judgment of the district court be affirmed.
Jackson, C., concurs. Calkins, C., not sitting.By the Court: For the reasons stated in the foregoing-opinion, it is ordered that the judgment of the district court be
Affirmed.
5. -: Answer. An answer in the nature of a general denial in an action for malicious prosecution puts in issue the plaintiff’s allegations of malice and want of probable cause. Under such an answer the defendant may introduce any evidence which tends to disprove malice or establish the existence of probable cause. 6. Instructions examined, and found to coincide with the plaintiff’s view of the law of the case, and to furnish no ground for a reversal of the judgment of the trial court. 7. Appeal: Harmless Error. If the evidence in a case is of such a character that a verdict for the defendants is the only one which can be upheld, the plaintiff cannot predicate error on the instructions, because, if erroneous, they constitute error without prejudice.