Kennedy v. Burbidge, 54 Utah 497. 5 and corruptly so as to make it a case of perjury as known to the criminal law, nevertheless its probative effect is just the same. It deceived and misled the court, and caused him to enter a judgment which, for the purpose of evidence in a case of this kind, should have no effect whatever. In Nehr v. Dobbs, 47 Neb. at page 870, 66 N. W. at page 866, a Nebraska case not cited in the briefs, the court said: "The reason that a conviction procured by perjury is not proof of the existence of probable cause for the prosecution is that the false testimony deceived the trial court, so that the inference naturally drawn from a judgment of that court is no longer a reasonable inference." This states the proposition in a nutshell. It is the falsity of the testimony and its tendency to deceive and mislead the court that vitiates the judgment and renders it ineffective when offered as evidence of probable cause, whether the testimony was willful and corrupt or given honestly and in good faith. This brings us to a consideration of such portions of the complaint as are material to the question before us. After quoting in full the affidavit filed by the defendant against the plaintiff upon which the warrant of arrest was issued out of the city court the complaint of plaintiff, in the fourth paragraph, alleges: "Plaintiff further alleges that all the material allegations of fact set forth in said affidavit of said defendant as hereinbefore set forth were false and untrue, and were made by defendant malicious and with no sufficient provocation or probable cause therefor. and were made by defendant without any personal knowledge of the facts therein sworn to, and without sufficient investigation to obtain knowledge concerning the truth of the facts set out, contained, and sworn to in said complaint, and were made by said defendant for the sole and only purpose of embarrassing, humiliating, and distressing this plaintiff and injuring him in his person and good name, and in his property, and were made by said defendant as plaintiff is informed and believes, and therefore alleges, with the object and purpose of injuring plaintiff's said business." It is also alleged in the fifth paragraph of the complaint that a trial was had of said cause, and plaintiff was adjudged to be guilty of violating the law as charged in said complaint, Appeal from Third District. and sentenced by the judge of said court. In the sixth paragraph it is alleged that the evidence in the district court to which the case was appealed showed that in truth and in fact all of the material allegations in the criminal complaint defendant filed in the city court were wholly false and untrue, and that the city attorney thereupon moved the said district court to instruct the jury to return a verdict of not guilty, which was accordingly done, and the judgment of acquittal was thereupon made and entered. 6 Without commenting in detail as to the meaning and effect of these allegations, it is sufficient to say they charge in effect that the whole proceeding against the plaintiff in the city court had its foundation upon testimony which was false and untrue, and, for the purposes of this case, that fact is admitted by the demurrer. Therefore, in accordance with the views herein before expressed, it seems to the court that the invalidity of the judgment of the city court, relied on by the defendant as a defense, is sufficiently alleged in plaintiff's complaint, and that the court erred in sustaining the demurrer and dismissing the action. In arriving at this conclusion we have not deemed it necessary to quote from or comment at length upon particular cases. They speak for themselves, and we are satisfied that the conclusion reached is within the spirit and intention of the best-reasoned opinions. The case is therefore remanded to the district court of Salt Lake county, with directions to said court to reinstate plaintiff's complaint, overrule the demurrer interposed thereto, permit defendant to file an answer to said complaint upon such terms as may be just, and proceed with the hearing of said cause. Appellant to recover costs on appeal. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur. ON APPLICATION FOR REHEARING. THURMAN, J. In his application for a rehearing respondent cites many Androvitch v. Fowler, 54 Utah 506. additional cases to the same effect as those cited in his former brief. We find no reason, however, for modifying the opinion heretofore rendered, except to make more clear the principle upon which we decided the question involved. We are not disposed to hold that a prosecutor acts without probable cause merely because it turns out that the information upon which he acts was false. But where, in addition to this fact, it is shown that the prosecutor either knew that the information upon which he acted was false, or had no personal knowledge of its truth, and made no investigation to determine its accuracy before instituting the prosecution, a different question is presented. A judgment obtained under either of said conditions should have no standing in a court of justice as evidence of probable cause, much less be treated as 7,8 conclusive. While every reasonable allowance should be made for possible errors and mistakes, we know of no reason why in a case of this kind a judgment wrongfully or recklessly procured should be used as evidence by the wrongdoer to defeat the person injured in his efforts to obtain redress. Of course, we must assume the allegations of the complaint to be true. That is all that is before us. The complaint in this case not only alleges a judgment of conviction, but it also alleges other facts which in our opinion effectually impeached the judgment and rendered it worthless as evidence of probable cause. The application for a rehearing is denied. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur. ANDROVITCH v. FOWLER. No. 3351. Decided June 18, 1919. (182 Pac. 222.) 1. APPEAL AND ERROR-OBJECTIONS IN LOWER COURT-MOTION TO STRIKE IRRESPONSIVE ANSWER. Where testimony was not responsive, it was the prerogative of defendant, who asked the question, and not plaintiff, to move that the answer be stricken; 2. 3. Appeal from Third District. so, where incompetent evidence was elicited, defendant cannot defeat an assignment of error complaining of the admission of such evidence on the ground plaintiff did not move to strike.1 (Page 511.) In an EVIDENCE-DECLARATIONS OF OWNERSHIP-ADMISSIBILITY. In an REPLEVIN-ACTIONS-EVIDENCE. Appeal from District Court, Third District, Salt Lake County; J. D. Call, Judge. Action in claim and delivery by John Androvitch against Thomas S. Fowler, begun in the city court and appealed by defendant to the district court. From a judgment there for defendant, plaintiff appeals. REVERSED and REMANDED for new trial. R. Gilray and H. V. Van Pelt, both of Salt Lake City, for appellant. Joseph W. Rozzelle of Salt Lake City, for respondent. THURMAN, J. This is an action in claim and delivery to recover a certain popcorn stand and miscellaneous supplies pertaining thereto, all of the value of one hundred and fifty dollars. The complaint alleges ownership in the plaintiff and unlawful detention of the property by defendant, to appellant's damage in the sum of three hundred dollars, for which sum plaintiff 1 Gleason v. Railroad Co., 49 Utah, 409, 164 Pac. 484. 1 Androvitch v. Fowler, 54 Utah 506. prays judgment, and for the value of the property, if delivery cannot be had. Defendant denies the ownership of plaintiff and the unlawful detention of the property, and as a further defense in substance alleges that he, as constable of Salt Lake City precinct, Salt Lake county, Utah, levied upon the machine and appurtenances as the property of one John Klakor, in whose possession the property was, in satisfaction of a judgment against said Klakor in the justice's court of said precinct ; that said Klakor and plaintiff for some time previous to the levy had been holding Klakor out to the public as the owner of said property, and said levy was made by defendant on account of said holding out, and plaintiff was therefore estopped from asserting title in himself. The action was commenced in the city court of Salt Lake City, in which court a judgment was rendered for defendant. Plaintiff appealed to the district court of Salt Lake county, and a jury in said court found for the plaintiff. A new trial was granted. The case was again tried to a jury, verdict rendered for defendant, and judgment entered accordingly, from which judgment plaintiff prosecutes this appeal. The ownership of the property presents the only question for determination. The question arises on two assignments of error: (1) The absence of any evidence to sustain the verdict; and (2) error of the court in admitting certain evidence over plaintiff's objection. The testimony of plaintiff himself was to the effect that he purchased the popcorn machine and stand for the sum of six hundred and fifty dollars, five hundred dollars of which was paid in cash and one hundred and fifty dollars in promissory notes, which he afterwards paid; that he ran the machine himself for about two weeks, and then hired Klakor to run it; that he paid Klakor five dollars per day for his services; that once or twice a month he came down from Alta, where he worked, and collected the proceeds of the machine, less Klakor's wages; that Klakor ran the machine for plaintiff about eight months, up to January 22, 1918; that neither Klakor nor any other person except the plaintiff was interested in |