71 N.W. 558 | N.D. | 1897
The plaintiff has recovered judgment against the defendant in an action for malicious prosecution of a civil suit. At the threshold of the case we are met with the contention that for the malicious institution and prosecution of a civil action without probable cause there is no remedy, unless the person of the defendant in such action has been arrested or his property seized therein, or unless there exists special circumstances removing the case from the category to which belong ordinary civil actions. On this very interesting question we find the decisions in hopeless conflict. In this jurisdiction it is an open question, and we shall therefore settle it upon principle and in accordance with the weight of argument, without reference to the number of authorities which can be arrayed upon the opposite sides, respectively, of this controversy. It may not be amiss, however, to remark that in our opinion the scales in which are balanced the relative weight of authority on this point have turned, and that now it is no longer true, as erstwhile it was, that the adjudications preponderate in favor of the English rule, that in the absence of the arrest of the person or of the seizure of property, or of other special circumstances, the successful defendant has no remedy, despite the fact that his antagonist proceeded against him maliciously and without probable cause. Favoring the English doctrine, we find the following authorities: Potts v. Imlay, 4 N. J. Law, 377; Mayer v. Walter, 64 Pa. St. 289; Eberly v. Rupp, 90 P. St. 259; McNamee v. Minke, 49 Md. 122; Wetmore v. Mellinger, (Iowa) 18 N. W. Rep. 870; Mitchell v. Railroad, 75 Ga. 398; Ely v. Davis, (N. C.) 15 S. E. Rep. 878; Terry v. Davis, (N. C.) 18 S. E. Rep. 943; Rice v. Day, (Neb.) 51 N. W. Rep. 464; Gorton v. Brown, 27 Ill. 489. Opposed to the English rule, we marshal decisions from the States of Connecticut, New York, Minnesota, Kansas, Kentucky, Missouri, Colorado, Ohio, Louisiana, Michigan, Tennessee, Indiana, Vermont, Massachusetts, and California: Lipscomb v. Shofner, (Tenn. Sup.) 33 S. W. Rep. 818; McCardle v. McGinley, 86 Ind. 538; Lockenour v. Sides, 57 Ind. 360; McPherson v. Runyon, (Minn.) 43 N. W. Rep. 392; Closson v.
In the case at bar it appears that the defendant in the civil actions alleged to have been prosecuted maliciously and without probable cause was not arrested, and that his property rights were not in any manner interfered with. The suits complained of consisted of three successive actions instituted in justice’s court upon the same claim, each case being voluntarily dismissed by the defendant herein when the day for trial arrived. Without at this point adverting more particularly to the facts, we will dispose of the question whether the action will lie, assuming the suit to have been maliciously brought without probable cause. We wish to settle the law in this state, not upon the peculiar features of this case, but upon the broad basis that the malicious prosecution of a civil action without probable cause is a legal wrong, for which the law will afford redress, without reference to any inquiry touching the seizure of property, the arrest of the person, or other special circumstances. Before the statute of Marlbridge (52 Hen. III.) an action for the malicious prosecution without probable cause of a mere civil action would lie. Closson v. Staples, 42 Vt. 209-214, Lockenour v. Sides, 57 Ind. 364; Lipscomb v. Shofner, (Tenn. Sup.) 33 S. W. Rep. 818; Pope v. Pollock, 46 Ohio St. 367, 21 N. E. Rep. 356; 14 Am. & Eng. Enc. Law, 32. Why this rule should have been departed from after the act of 52 Hen. III. had been passed, is apparent from the language of
We will briefly notice the arguments adduced by courts in this country to support here the English rule. Ignoring the differences between the phraselogy and manifest purpose of the statute regulating costs in this country, and the letter and obvious spirit of the statute of Marlbridge, the assertion is not infrequently made that costs afford full indemnity, though the suit be instituted without probable cause, and prosecuted in a spirit of malice. To our minds, this argument does not rise to the dignity of sophistry. The claim that the payment of statutory costs will in all cases, or even in any case, make amends for the damage inflicted by the malicious prosecution of a civil suit, is palpably false. To hold that, because the dishonest suitor has been required to give his successful antagonist some trifling measure of indemnity, therefore it follows that the purpose is disclosed to withhold a remedy for a grievous wrong, which on a fundamental maxim of British jurisprudence, should not be withheld, is, to our minds, a violent stretch of imagination. When the argument of expediency is advanced, it suffices to reply to it by pointing to those states in which it has long been the rule that an action will lie for the malicious prosecution of a civil action without probable cause. There we find no legislative change of this rule. Nor have the courts in those states made haste, because they have discovered its impolicy, to overrule a doctrine which, it has been predicted by other courts that have refused to adopt it, would clog and choke the channels of litigation with a multiplicity of suits springing up -as each case was decided iri favor of the
Counsel for appellant, in his able and learned brief, argues that a defendant should not be accorded a remedy for the malicious prosecution of a civil action, for the reason that a plaintiff is given no remedy when he is delayed and harassed in his efforts to secure a judgment upon a valid claim by a fictitious defense maliciously interposed. Should we concede that there was no liability on the part of the defendant in the case supposed, it would by no means follow that this defect in the law should be be allowed to destroy a right of action which from time immemorial has existed, save when it has been taken away by express statute, as in the case of the statute of 52 Hen. III. But we do not concede the postulate of counsel for appellant. Legal science has not yet attained its full development. It is constantly undergoing changes. New doctrines are being established. Old rules are receiving modifications. Under altered social or economical conditions, it will often appear that the continued denial of a remedy for what was once not a serious, but which has finally become a grevious, wrong, can no longer be maintained. Moreover, a right may have lain dormant because never asserted. This affords no argument against the enforcement of such right for the first time. It is not safe to infer that because no one has
Passing now from the main question of liability, it becomes necessary to refer with greater particularity to the facts. The plaintiff in this case, Kolka, employed his nephew, named Gresczykowski, to work for him upon his farm. After having labored there upwards of two years, Gresczykowski appeared at the office of the defendant, Jones, who was a collector, and placed with him for collection a claim against Kolka for his services as a farm hand. In our discussion of the facts, we shall state those which uphold the plaintiff’s case; for, the jury having rendered a verdict sustaining his claim for damages, we must assume that every controverted issue was determined in his favor, so far as it'is necessary to so assume in support of such verdict. This claim of Gresczykowski against Kolka appears from the testimony of Gresczykowski to hcive been $12, and no more. The jury were warranted in finding that Jones knew that the claim did not exceed $12, but, on the other hand, that Jones was justified in believing that Gresczykowski had some claim against Kolka; and that he did so believe, does not, in view of the evidence in the case, admit of doubt. Gresczykowski left this claim with Jones for collection. Subsequently Jones sued Kolka upon it, in the name of Gresczykowski as plaintiff; the suit being brought before a justice of the peace at Minto, Walsh County, in this state, whose name was McQuatt. On the return day of the summons the case was dismissed at the request of Jones, and at the same time he procured a new summons to be issued by the
The following portion of the charge was excepted to: “The court instructs the jury that the bringing and dismissal of the suits in the manner which they were brought and dismissed is prima facie evidence of the want of pxmbable cause, but is not conclusive evidence of the want of pi'obable cause; and if the juxy believe fi'om all the evidence and circumstances as they exist, and, as shown by the evidence, excuse the bx'inging and dismissal of the cases, and thei'e was in the defendant’s m.ind a well-gi'ounded belief, and that he had pxmbable cause to believe the facts as testified to by him, then the plaintiff is not entitled to recovex.” We /find no error in this. It is well settled that the voluntaxy dismissal of a suit is prima facie evidence of want of pxmbable cause. Wetmore v. Mellinger, (Iowa,) 14 N. W. Rep. 722; Burhans v. Sanford, 19 Wend. 417; Nicholson v. Coghill, 4 Barn. & C. 21; Green v. Cochran, 43 Iowa, 544; Cooley, Torts, side page 185. Such dismissal, unexplained, is as cogent evidence of want of probable cause as the failuxm of the prosecutor in a ci'iminal action to make out a sufficient case to satisfy a committing magistrate. And yet it has been repeatedly held that the discharge of the plaintiff in the malicious prosecution action by a committing magistrate is prima facie evidence of want of probable cause. Cooley, Torts, side page 184; Bigelow v. Sickles, (Wis.) 49 N. W. Rep. 106; Barhight v. Tammany, (Pa.) 28 Atl. 135; Brown v. Vittur, (La.) 17 South. 193; Smith v. Association, (N. C.) 20 S. E. Rep. 963; Newell, Mal. Pros. p. 283. But it Is
During the progress of the trial the plaintiff testified that, in the defense of the actions instituted against him by Jones, he had paid $35 for attorneys’ fees. This evidence was objected to on the ground that it was incompetent, irrelevant, and immaterial. The evidence having been received over objection, the defendant, after both parties had rested, moved to strike it out on the grounds that it was not proper evidence, and was incompetent, irrelevant, and immaterial. This motion was denied. It is now urged that the evidence should not have been received, for the reason that it was not shown that the fees paid by plaintiff to his attorneys were reasonable for the services rendered. It is apparent that no such point was intended to be raised by the
The judgment of the District Court is affirmed.