178 S.E. 812 | W. Va. | 1935
George Hoffman brought an action of trespass on the case for malicious prosecution against Gertrude Hastings in the circuit court of Ohio County. A demurrer to the plaintiff's declaration was interposed assigning two grounds, first, that the declaration fails to set forth the alleged malicious conduct of the defendant on which it is predicated, and second, that the declaration shows on its face a judgment of conviction of plaintiff which is conclusive evidence of probable cause. The circuit court overruled the first ground of demurrer and sustained the second, certifying its action to this Court.
On the first ground of demurrer, the defendant relies upon the case of Tavenner v. Morehead,
We are of opinion that the trial court ruled correctly in overruling the defendant's demurrer upon the first ground assigned.
As to the second ground of demurrer, the West Virginia case of Haddad v. Chesapeake Ohio Railway Co.,
It is, of course, the universal rule that the effect of a judgment of conviction upon the question of probable cause is destroyed by a showing that the conviction was obtained by fraud, conspiracy or, perhaps, as a result of deliberately false testimony. Therefore, if the declaration in this case had contained sufficient averment to show that the conviction of the plaintiff before the justice was fraudulently procured, the averment of that conviction would be overcome. We do not think, however, that its charges are sufficient to show that the conviction was fraudulently procured. The averment is that the defendant falsely and maliciously and without any reasonable *155 or probable cause whatsoever caused the plaintiff to be carried in custody before the justice, and that the justice, having heard the evidence against the plaintiff concerning the supposed offense, adjudged him guilty. In order to make the allegation sufficient it would have to aver fraud in the procurement of the conviction in the same manner that fraud is to be averred and proven in other cases, and would have to show by detailed allegation just what the fraudulent conduct was that procured the conviction. A general charge of fraud is not sufficient. Furthermore, the charge here merely is that the defendant caused the plaintiff to be falsely and maliciously and without probable cause carried in custody before the justice. It is not directly charged, even in general language, that he was fraudulently convicted by the justice, nor that the conviction was procured by fraud.
For the reasons stated, we are of opinion that the circuit court of Ohio County correctly held the declaration bad on demurrer for the second reason assigned.
The questions certified are answered in accord herewith and the holding of the circuit court of Ohio County on demurrer is in all respects affirmed.
Affirmed.