*1 versed sustain the motion for and the court is ordered to trial therein. new judgment Rich- versus in the of “Richard L. Keane case
ard is reversed and court is ordered sustain Schroeder” the. the motion for a trial new therein. Lybrook
Carson, Sullivan, JJ., concur. Reported in 264 E. 2d 95. Note. — Ensley Corp. et al. Commercial Credit Rehearing denied Filed December 1970. 769A140. [No. 3, 1971.] December 22, March Transfer denied *2 & Lobley, Ryan, Alan H. Miller counsel, Ice Donadío Indianapolis, Scifres, Hollingsworth Martin, Lebanon, & for appellant. & Blue, Bobbitt,
Sherwood Arch Ruckelshaus, Bobbitt, counsel, O’Connor, Indianapolis, Eugene Burns, B. of Leb- anon, appellees.
Hoffman, Defendant-appellant appeals judg- from a P.J. plaintiffs- appellees ment in favor of in an action for the mali- proceedings. court, cious of attachment The trial jury, $75,500 damages compensatory without a awarded $35,000 damages punitive plaintiffs-appellees. “
It is the well-established law in Indiana that he decision [t] presumption of the trial court comes us clothed with the a correct result was reached and the burden is * * * presumption.” to overcome that A.S.C. Corporation Bank, etc., 19, 23, First Nat. 241 at v.
153 (1960); State, 2d 460 v. E. Souerdike 167 N. (1952). E. 108 N. 2d only reviewing may the record us we consider
In before together any appellees, reason most favorable to with evidence may therefrom, and it able inferences which drawn only is and it when there no conflict in the evidence contrary only can to a conclusion one lead reached, decision A.S.C. trial court will the be reversed. Bank, etc., State, Coporation supra; First Nat. Souerdike v. Co., 523, 529, supra; Lummus Pokraka (1952). 2d N. E. pertinent most are as fol- facts favorable to
lows : December, Ensley, Inc., corpora- an Indiana Jack tion, operated plaintiffs-appellees as dealer owned foreign Defendant-appellant into cer- entered automobiles. agreed whereby provide of credit to tain contracts line *3 financing acquisition Ensley, Inc., purpose of for Jack sale, resale, new used automobiles under a floor of and arrangement, provide financing plan and to retail to the cus- purchase Ensley, Inc., of automobiles. tomers of Jack financing arrangement, part Plaintiffs-appellees, as a guaranteed financing personally plan Ensley, the floor of Jack Inc. disagreements early
In 1960 and and existed arose litigants regarding here involved certain between the matters operation dealership pertaining to the of the automobile and financing of and cars manner in which the new used being questioned Appellees payments or not handled. whether Inc., being by Ensley, properly by were credited made Jack wrongdoing and, appellant. Each accused of as a the other telephone made calls result of statements and numerous at all hours, as several visits to the of as well home —some Chicago appellees representatives were — safety safety personal their and the put in fear for of their security possessions, real children as well as the their both personal. and by representatives appel
Indicative of the threats made given following- testimony Ensley, appellee-Jack lant is the Hull came on direct “Mr. Luckhardt and Mr. examination: * * get you’ve *, got in- Mr. Luckhardt Jack over this said * * * yours asking accounting, about for an insane idea * * * you going give you you, I’m not it know know * * * big keep we’re outfit and we attachment can on you your life, your rest of we can fix for the it so wife anything your keep won’t have kids and and won’t eat we’ll you up your locked with that attachment rest of life for the * * years you thing twenty *. never let off this [W]e’ll >>
:Jc n Further, appellee-Beni Ensley testified, direct examina- * * * tion, night “had phone that she several calls late at all morning everything night times of the and one this and else morning (cid:127)man called me about four in the and said that he was representing keep Commercial Credit and that we said should eye hung up better on our I children and and later on you Ensleys sounded like the man called same and said that really brave, just we’ll see how that I brave and should really my And, further, children.” watch children and “[T]he sitting [patio] I padio on the back our and all home jumped of a sudden someone the fence and he had on what I pants funny glasses would short call and a hat and sun was, got after I these threats didn’t know who it so I up children and took them in the I house as fast as could and up porch pushed he came on the me inside the door and says you Ensley he know me Mrs. I and I said don’t know *4 you glasses at all and he took his off and he said I’m Norman they McDonald from Credit Commercial and said he instructed give you you me to find and these and handed me letters.” testimony appellees by disputed appellant. This was not In an disputes, appellees effort to resolve the and Jack Ensley, Inc., April 19, 1961, on accounting filed an action for damages against appellant, president its and his assistant. pending The action Superior was still in Room of the Court County, Indiana, Marion S61-2697, as No. Cause at the time judgment the herein was entered Boone Circuit Court. April 25, 1961, day On ap- the same on which peared specially accounting, in the action at- for it instituted proceedings against appellees tachment in the Marion Circuit alleged Court. in its affidavit for attachment appellees Indiana, were non-residents of State of were resi- dents of of Florida, the State and had so concealed themselves upon summons could not them, be served and further sought stated that it appellees to recover $44,680.26 certain contract. Also, April 1961, appellant, on principal, as with United Fidelity Guaranty Company, surety, States & as executed and day, filed its attachment bond and same order of attachment was issued of the Circuit Clerk Marion possession personal property Court seize take into appellees County, and attach the land of in Marion or so much satisfy $44,680.26. thereof as would the claim for April 25, 1961, appellant On caused the’ Sheriff of Marion County, Indiana, belonging to attach certain lands $750,000. that time market had fair value single parcel previously land when attached was not a but had capable been divided and was of further so division parcel attachment of a smaller thereof would been suffi- have satisfy $44,680.26. cient to the claim of August 13, acting On appellees, on motion of the Mar- quashed proceedings' attachment, ion Circuit Court attachment, of the service writ of amended return Sheriff’s thereto, judgment appellees. Appellant ap- and entered judgment pealed Appellate and, Court Indiana judgment Marion on June Circuit Court *5 July 1964, petition 10, appellant’s for re- affirmed.1 On was 1, 1964, Supreme hearing the Court On October was denied. On October petition transfer. appellant’s of Indiana denied 26,, 1964, Supreme Appellate Courts cer- the and of the Clerk opinion of copy the Court a of tified to the Marion Circuit affirming judgment court. Appellate of the trial the the Court by appellant, its filing proceedings of the attachment rehearing, court, petition to appeal petition for transfer to this opinion Court, of Supreme certification of and the the to the period from to Marion Circuit Court covered the this court During pe- April 26, this 42-month 1961 to October deprived use of the and unencumbered riod free of their land. prosecution action for malicious
On November appeal, proceedings, this was attachment which resulted in pleaded by appellees. Appellant affirmative commenced — and limitations had run defense —that the statute of action barred. request its find- made parties,
At of both the trial court ing of facts and stated conclusions of law thereon. overruling assignment
Appellant’s of its sole error is the contains 21 motion a trial for new trial. The motion for new grounds trial court is not include: decision of the law, evidence, contrary sustained sufficient the decision is damages and the are excessive. argue only specific chosen and three has to brief defendant-appellant 1) probable cause as had
contentions: prior law; 2) run matter limitations had statute of action; 3) plaintiffs commenced trial time the this awarding damages after accrued the dis- court erred in solution of the attachment. 3 Re- of malicious set forth in
The elements statement, Torts, follows: are as § Corp. App. Ensley, 1. Commercial Credit 199 N.E. denied), (1964), (Transfer 2d Proceedings Causing “Initiation of Civil an Ar Deprivation Property. rest or a by initiating “One proceedings against who civil another deprived him possession causes to be chattels or other or arrested things his land is liable him thereby harm done if (a) are initiated
(i)
probable cause,
without
(ii)
primarily
purpose
for a
other than that of se-
curing
adjudication
of the claim on which
*6
proceedings
based,
and
were
(b)
except
they
parte,
where
are ex
have
against
person
terminated in favor
they
whom
Cassidy
brought.” (Emphasis
supplied.)
also:
See
Cain,
App.
852,
145
581,
Ind.
251
E.N.
2d
v
.
(Transfer
(1969),
; Dwyer
denied)
McClean,
v.
133
App. 454,
(Transfer
50,
Ind.
175
(1961),
N. E. 2d
;
denied)
E. 975
Harris,
App. 59,
Treloar v.
66 Ind.
117 N.
(1917).
probable
contends that it did have
cause to believe
longer
were no
residents of Indiana and were
residents
following
of Florida based
statement which
appeared
signed
at
6,
the bottom of a
1961,
letter dated March
appellee-Jack Ensley
from
Indianapolis:
to his counsel in
forgot
“I
given up
to mention that we
residence
have
our
Indiana,
establishing
permanent
and are
residence in
Florida.”
Probable
apparent
facts,
cause exists when from an
state of
exist,
reasonably intelligent
found to
person
a
prudent
and
would be
charged
induced to act
person
as did the
who is
having
with
probable
the burden of
cause to act. Cas
v.
v.
sidy
Cain,
Dwyer
supra;
McClean,
supra;
Hutch
v.
Wenzel,
inson
155
49,
(1900);
troversy, Pennsylvania law them the court what 147, and (1885), Dwyer Co. Weddle supra. McClean, authorities cited.” also: See was jury, In trial court the instant case there was no postscript Appellees sole finder of fact. testified knowing quoted put it would above was on the letter appellant, shown to reason the statement and that the stop keep effort to the “harassment” and “hounding” Appellees appellees. their home from sold previ- Boulevard, their Indianapolis, and leased North Kessler Indianapolis, their moved Road, home at 3641 ous. Watson Appellees address. household furniture to the Road Watson they fact, representatives. appellant’s hiding were not 1961, by representative of April had been visited Indianapolis They appellant. represented counsel in *7 attempting appellant in in contact with who were constant litigation disputes. in Marion Appellees had initiated settle the accounting. County seeking Appellant was aware an appel- previously address, mail been sent to Road had Watson made. personal visits had been address and lees at that case there record in the instant the in the From evidence conflicting support- evidence presented fact to the trier of was trial probable from which the ing opposing cause theories obliged a matter choose and then conclude as court was probable nonexistence of cause. or the existence either the. law record, the trial court contained the in evidence Based probable concluding without justified was proceedings attachment. instituted cause when it.
159
say
After a review of the entire record
cannot
that the
we
regarding probable
only
cause leads
evidence
one conclusion
contrary
and that conclusion is
to the one reached
findings
Therefore,
trial
court.
conclusions
respect
of the trial court with
to the issue of
Corporation
Bank,
must
affirmed.
First
cause
A.S.C.
v.
Nat.
etc., supra,
19,
;
(1960)
That there is statute of limitations which prosecution for malicious in Indiana2 is to actions not con- action tested. The issue be decided is when the for malicious prosecution accrued. August 13,
Appellant asserts that action accrued on quashed the Marion Circuit Court 1962—when in attachment —and because such action was commenced not 20, 1964, applicable until statute November it is barred argue Appellees, hand, of limitations. on the other 26, 1964, opinion not action did accrue until October when the and, court was certified to the Marion Circuit this Court filing thus, on November this suit was well statutory period. within the support posi- cites several cases which tend to its Indiana prose-
tion but cite no cases which involve malicious Levering County, National Bank Morrow cution. 87 Ohio (1912), however, E. did St. involve action Supreme for malicious and the Court of held Ohio one-year proceeding in not that a error did toll the statute judgment defendant-appellee. of limitations and affirmed a Levering interpretation Our is that decision turned on “proceeding between a the difference error” and a “statu- tory appeal” applicable under Ohio The court statutes. stated: 323 of N. E. general that, original rule is until the suit between “The legally parties plain- has been terminated in favor of p. 301, § 2, Anno., (First), 2. Acts ch. 2-602 § Stat. Repl.
Burns’ 1957 160 action, no prosecution latter has
tiff in the malicious presumption point no remedy, is reached because until that arises.” of malice and want of cause And, further, page 324 100 N. E.: in clearly proceeding a drawn between is “[Distinction error and by statutory cases appeal, a in certain which original brought up< superior for review court case is to the giving law, merely by notice novo, de the facts and the giving bond, in trial court.” party and a to the adverse Indiana, statutory legally appeal, under our the suit is not finally terminated until it has been decided our court of appeals finally submitted, opinion it is which and its certi- fied to the trial court.
Appellant
upon Waring
Fletcher,
relies
also
152
v.
Ind.
Waring
(1899).
52
E. 203
cites
proposi-
for the
appeal
filing
Indiana,
that
tion
the State of
an
without
bond,
suspend
judgment
appeal
does not
from which
agreement
complete
appeal
is taken. We
with that state-
agree
However,
that
ment and
is the law Indiana.
question
appeal
here —the
is not
issue
to be decided in this
prosecution
is when the action
malicious
accrued.
litigant
prevented
enforcing
remedy
Where
his
be
legal
pending
proceedings,
during
cause
time
he
against
prevented
is thus
will not be counted
him in
determining
whether
statute
limitations
barred
has
Cockley,
ex rel.
App.
his action. State
Pink
(Transfer
denied) ;
City
37 N. E. 2d
Wayne Hamilton,
al.,
et
Fort
We Restatement, (1938), Torts, 444-445 which at is as § 674, follows: person against “g. in the whom Termination favor of proceedings brought. proceedings may are be civil Civil against they person in are the whom terminated favor the (1) by brought (b), under the rule stated Clause by tribunal, adjudication competent claim a
favorable by person (2) proceedings or withdrawal of proceedings bringing them, (3) the dismissal of prosecute adjudi- of his A because failure to them. favorable may by judgment by a court after trial cation or dication an be rendered adju- equivalent. In case demurrer or its either proceedings, a sufficient termination unless is of the proceedings apeal appeal taken, is an is taken. If appeal disposition and not terminated until final may (Emphasis such as it entail.” of supplied.) further ap- regarding only Our decision is of limitations statute plicable prosecution. Justice suits for malicious would if limitations defeated we the statute of hold that began prose- to run an element of malicious essential before cution, plaintiff, occurred. termination in favor of the final
Appellant’s specification the trial court error third damages awarding the dissolution erred in arose after which Appellant contends that it was error attachment. damages $25,000 trial from' court resulted to award parcels on or about forced sales of of land. The sales occurred 1,1962, 10,1962 Also, 18,1962. October October December appellant sus- contends that is not sufficient evidence to there damages finding tain in the the court’s sustained $42,500 by attorneys’ amount of fees for services reason of rendered after the dissolution of the attachment. Waring support cites
In these contentions argues supra, Fletcher, E. 203 appeal that the had no effect on the dissolved attachment and damages question that the were incurred —if at all—after August and it was error for the court to award them. Dwyer McClean, supra, at 457 App., of 133 2d, of 175 N. damages E. this court set out the measure of prosecution, an action for malicious as follows: prosecution “In plaintiff an action for malicious may able damages recover all prob which are the natural consequences of the malicious com plained of.” ignore would have us a fact of take which we judicial notice, i.e., appeal judgment affecting an *10 places encumbrance on land the title land cloud on to such adjudication which is not appeal. removed until final of the appeal That an will have an effect on attachment dissolved recognized I.L.E., Attachment, p. in 3 243: § appeal, “In the absence once an attachment is dis- of issued, solved it has no more than if it been effect had never regards property attached, parties put and as (Em- position the same if as no attachment had occurred.” phasis supplied.) ap- The record before us contains sufficient evidence pellant probable initiated the attachment without cause, harassing appellees, malice, purpose with and for the $750,000 and attached real a claim estate valued to secure $45,000. Also, appellant prose- of less than continued to petition cute the attachment transfer until the was denied by knowledge Supreme Court of Indiana with full having appellees’ effect that such action was free and unen- cumbered use of their land.
Further,
supports the
there is
record
evidence in the
which
finding by
damages
appel-
the trial court that
objects
probable consequence
natural
lant
were the
complained
of.
malicious
judge
In
instant
trial court
case the
was the sole
credibility
weight
demeanor and
witnesses as well as the
given
to be
all the
evidence. All conflicts in the evi
any
dence and
reasonable inferences to be drawn from
such evidence were to be determined
the trial court
Corporation
Bank,
as the finder of fact. A.S.C.
v. First Nat.
etc., supra;
Company,
Storey,
App.
Midwest Oil
Inc. v.
134 Ind.
(Transfer denied) ;
Within the established framework of no reversible error was committed trial court.
Judgment affirmed. concur; Sharp, JJ., White, J.,
Pfaff and dissents with opinion.
Dissenting Opinion plaintiffs-appellees burden was on the J. The White, prove, action, as an element of their that defendant- cause sued out writ of attachment without plaintiff cause. “This is one of the cases in which a must negative.”1 prove a
The evidence before the trial court relevant to that issue following undisputed not in conflict. It established the facts: January 1961, Ensleys sold their house on Kessler Boulevard and moved to Watson Road and received *11 mail Corporation from Commercial at Credit that address. January Ensleys purchased
2. Later in a Lauderdale, house on Atlantic in Boulevard Fort Florida and family moved their that into house. March'10,1961, general
3. On counsel of Commercial Corporation Indianapolis attorney repre- Credit wrote the senting it as follows: Indianapolis 1. Terre Haute and Railroad v. Mason Co. 578, 581, 332, 333. 46 N.E. attorney “Although you advised their have been Florida, recently changed
they their domicile to have order, therefore, may in to in fact. It be not so would expense.” this, if some check on even that entails Ensleys represented Commer- 4. In March of writing: Corporation in cial Credit forgot given up residence have our “I mention that we establishing permanent in Indiana, residence and are Florida.” attorney repre- Indianapolis
5. On March general senting Corporation Commercial Credit wrote Corporation: counsel of Commercial Credit up put “In an attachment and a addition we shall issue commenced, Bums’ bond ana explain the time suit is under Indi- 3-501, paragraph. first better Statutes order to why being particular procedure followed, I this is possession photostatic wish to advise that we have in our a copy Blue in Ensley aof letter from directed to Sherwood Mr. following quotation found: forgot given up T residence mention that we have our establishing permanent Indiana and are residence signature, Ensley’s Florida.’ This letter carries Mr. involved, in analysis graph, facts I am with view of all the convinced 3-501, para- first of Burns’ Indiana its Statutes position in a better to obtain an we now than we be if we were to assume that attachment would any prove attempt this five with of the other was his residence allegations necessary feel that of that Section. We filing letter, photostat the Court with this immediately complaint of attachment issue an our bond will our against here in Marion the real estate held County Ensley.” by Mr. and Mrs. representative April 16, On 6. of Commercial Corporation Appellees at residence Credit their contacted Lauderdale, Boulevard in Florida. Atlantic Fort Ensleys April 19, suit for an On 1961 the filed against accounting Corporation and serv- Commercial Credit
165 Corporation prior ice was made on Commercial Credit 25, April 1961.
That evidence could lead men reasonable conclu but one probable : sion There was reasonable cause for defendant- appellant appellees’ to believe at the time that it caused real attached, appellees estate to be that were non-residents of ground statutory state. That was a for the attachment2 and appellant’s was immaterial attachment affidavit also alleged concealing themselves to avoid process. service of Wise (1895), 141, v. McNichols 63 Mo. equally 144. Evidence of malice is irrelevant to the issue of probable probable cause. Want of cause cannot be inferred (1885), the existence of McCasland malice. v. Kimberlin 121; Bitting Eyck 100 (1882), v. Ten 82 Ind. 421. majority finds a conflict in only the evidence con because it siders not evidence relevant to the issue.
As (1917), 59, we said Treloar Harris App. 66 Ind. 975, 981, (in alleged prose- 117 E. which malicious cution awas civil action for commitment a mental hos- pital) probable “whether there was or was not turned cause relating on the evidence to the facts and circumstances affect- ing appellee’s mental condition had knowl- edge or at the time proceeding. he instituted the information (Emphasis . .” added.) . recently Cassidy
And as we said so v. Cain App. 581, N. E. 2d Dec. : probable “As to the existence of cause 675 of the Re- § statement of Torts states: proceedings against ‘One who initiates civil has another doing reasonably he cause so if believes in the upon existence of facts which his based, claim is [emphasis added] (Spec. Sess.), § 197, p. 240, Acts 1881 ch. Burns IND. STAT. (B). ANN. 3-501. See Trial also Rule § reasonably (a) such facts claim believes under existing may or under valid at common law statute, (b) advice of counsel in reliance so believes ” given in 666.’ under the conditions stated § *13 defendant-appel- question “probable is a of what Since cause” believes”, “reasonably question cannot is a which lant it appellant by reciting to unknown facts which were answered accept the proceedings. If we it initiated attachment when the thereby validity eliminate proposition, of self-evident we that ap- testimony of the such evidence as from our consideration concerning representing pelles motive for their undisclosed longer they resi- postscript, no appellant, the that were the dents of Indiana. necessary (when reasoning
Furthermore, that makes appel- that specially) trial court find that the facts are found reasonably appellees non-resi- were believe lant did not they appellees’ real to be attached. dents when caused estate finding conclusion that attach- Such a is essential to that find- probable cause. Absent ment was sued out without ing sustain fact, special'findings are insufficient to probable undisputed legal cause. And conclusion of want of obviously quite insufficient sustain in this case evidence reasonably finding appellant negative did not believe3 á non-residents. cause, prove appellees failed to want Because judgment. alone, On reverse the reason I would and for that damages limitation, I concur questions of and statute of reasoning by re- which the not in the result reached but respect reached, particularly with statute sult was limitations. rejects Levering Bank majority opinion National
The County (1912), 100 N. E. as 87 Ohio St. Morrow language speaks corporation and which of what appellant is a 3. obviously imputed or refers to know believe did not did or knowledge or belief. constructive authority premise appeal that an is in this court “statutory appeal” Levering distin nature guishes “proceeding my opinion appeals from a error”. Supreme essentially to this court and to the Indiana Court are error, Levering. as the distinction is drawn in “theory” Levering unassailable, pure me but to On seems to unjust adopt to harsh and results. its rule would often lead weight Furthermore, authority is to the I believe contrary.5 Reported in 264 N. E. 2d
Note. —
Ramsey
Peoples
Savings
et al.
Trust
Bank
&
rehearing
20,742.
petition
Filed
filed.]
December
1970. No
[No.
*14
Sunderland,
Proper
Appellate Court,
Function
4. See
86, 90,
483, 494;
Curless Watson
N.E. 497.
L.J.