142 P.2d 546 | N.M. | 1943
This is an action for malicious prosecution growing out of a civil suit instituted by appellee against the appellant in the District Court of Chaves County, New Mexico.
Appellant filed his complaint in the court below alleging in substance as follows: That appellee brought suit against him maliciously and without cause; that said suit had terminated favorably; that he had been obliged to employ an attorney to defend him; that such suit by appellee constituted an abuse of process of the court; that appellant had always enjoyed excellent credit; that such suit was published in the credit bulletin; that an agent of appellee stated to various business men in and about Chaves County that it was necessary for appellee to sue appellant, and that wholesalers and others doing business with appellant called upon him for an explanation of the matter, jeopardizing his credit standing, causing him worry and embarrassment; that as a direct and proximate result of the acts of appellee he suffered actual damages in the sum of $1,000, and also prayed for exemplary damages in the sum of $5,000.
To the complaint appellee interposed the following motion to dismiss: "The plaintiff's alleged cause of action against the defendant is an action of malicious prosecution instituted by the plaintiff herein, and that said alleged cause of action is a civil action, and that the complaint and summons show upon their face that said action is an ordinary civil action and not accompanied *311 by the arrest of the plaintiff or by seizure of his property and that no special injury was suffered by the plaintiff, except such alleged injuries as necessarily result in any and all civil suits to recover for like causes of action."
The trial court sustained appellee's motion and dismissed the complaint. Appellant appeals to this Court, complaining that the trial court erred in so doing.
Only one error is assigned, to-wit: "The court erred in dismissing the complaint." Other questions are argued in appellant's brief, but they will not be considered here in disposing of this case, as the theory of appellant's cause of action is one for malicious prosecution.
The question here is: Will an action lie for the recovery of damages sustained by the malicious institution and prosecution of a civil action without probable cause, where there has been no arrest of the plaintiff's person or seizure of his property by the defendant, and no injury sustained other than that necessarily resulting in all ordinary law suits?
No claim is made by appellant that he was arrested or that his property was seized. No injuries, other than those that would flow from an ordinary law suit, are claimed.
There are two rules on this question, the so-called English rule and the American rule. The matter is one of first impression in this State, and we will, therefore, consider it on its merits, free to determine which rule is more in harmony with justice and our public policy. An abundance of respectable authority may be found on both sides of the question. The courts seemingly are hopelessly divided.
The leading case in support of the American rule that the action may be maintained is Kolka v. Jones,
Some of the later decisions in support of this rule are Ackerman v. Kaufman,
The trial court sustained a demurrer to the complaint. The Supreme Court, in reversing the case, said: "In England prior to the statute of Marlbridge the English courts generally held that arrest of the person or seizure of his property, in a malicious prosecution action, is not essential to a recovery. After the passage of this statute, however, the English courts generally held that such interference is essential. This later doctrine of the English courts is usually designated in judicial opinions and by annotators as the English rule in such cases. But it is by no means universal or even largely recognized by the courts in the United States. Indeed, the ancient, not the modern English, rule is, according to the majority of our courts and annotators, the prevailing rule in the United States."
And quotes as authority Hoyt v. Macon,
The holding of the Colorado Court is to this effect: If a defendant in an ordinary law suit maliciously and without probable cause defends against the claim of the plaintiff he may be proceeded against in a suit for malicious prosecution for so doing.
It is interesting to pursue this theory to its logical conclusion. Suppose in Slee v. Simpson, supra, Mrs. Slee fails to maintain her suit for malicious prosecution against the Gilpatricks, the Gilpatricks would in turn have a cause of action against her for malicious prosecution, and so on ad infinitum.
Notwithstanding the cases cited therein in support of the so-called American rule, an investigation of the authorities and a consideration of the principles involved lead us to the conclusion that the contrary doctrine is well established, and that an action will not lie for the prosecution of civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of the defendant, or where the defendant has suffered no injuries except those which are the necessary result in all ordinary law suits.
This doctrine, we think, is sustained, not only by the greater weight of authority, but by the better reasoning.
Two of the leading cases in support of the doctrine we here adopt are Abbott v. Thorne,
In Abbott v. Thorne, supra [
In Wetmore v. Mellinger, supra [
See, also, Peckham v. Union Finance Co.,
Schwartz v. Schwartz, supra, was a case where a judgment was entered on a cognovit note for $15,000 with interest, costs and attorneys fees. A motion was filed to set aside the judgment, accompanied by a tender of the principal and interest due. The motion was sustained and leave granted to plead. Thereafter the tender was accepted and the suit dismissed. An action for malicious prosecution was instituted on the theory that a judgment in narr and cognovit is not an ordinary civil suit begun by summons. The court held *315
that the only difference between a judgment in narr and cognovit, and one in a suit brought by summons, is that the summons in the former is unnecessary, because the maker of the note authorizes his appearance and waives summons, and that this did not distinguish it from an ordinary civil suit; the court said [
In Peckham v. Union Finance Co., supra [
Appellant and appellee both cite and discuss Leyser v. Field,
The action upon which the suit at bar is founded was an ordinary civil suit for debt. No injury is claimed, except such as attend all such law suits. Dismissal of that suit was at the cost of the plaintiff. Cost, as provided by our statute, is the measure of damages in such law suits. In Delahoyde v. Lovelace,
1941 Comp., Sec. 19-101, Rule 41, Sec. D, gives the trial court the power to require the plaintiff, after dismissing his cause of action, to pay defendant's cost in the first suit before he may maintain a second suit *316 upon or including the same claim against the same defendant.
It will be observed that the rule we here adopt extends the doctrine no further than to cases prosecuted in the usual manner, and where defendant suffers no damages other than necessarily attend all suits brought upon like causes of action. If the bringing of the action operates to impose care and expense, or even to cast discredit and suspicion upon the defendant, the same results follow many actions of like character, whether meritorious or not. They are uncompensated burdens of litigation. State ex rel. Stanley et al. v. Lujan,
Finding no error, the judgment is affirmed, and it is so ordered.
SADLER, C.J., and MABRY, BICKLEY, and BRICE, JJ., concur.