O'Brien v. Barry

106 Mass. 300 | Mass. | 1871

Morton, J.

At the trial, the plaintiffs offered to prove, in substance, the following facts: That the defendant maliciously and without probable cause, having no title to the goods replevied, sued out a writ of replevin against the male plaintiff, and caused the officer to replevy and remove the furniture of the plaintiffs ; that he did this for the purpose of injuring the female plaintiff; and that she was thereby greatly injured. It was admitted that the replevin suit was pending at the time this action was commenced. The question is, whether upon these facts, if proved, this action can be maintained.

It is an action of a novel character, but some of the rules which govern actions for malicious prosecutions apply to it and are decisive of the question raised. If an action of this nature can be maintained at all, it is obvious that it can only be upon proof that the plaintiff in the former action, which is alleged to be malicious, had not a legal cause of action. If he had, it would be his right to enforce it by the remedies provided by law, and he would not be liable for any injuries which might incidentally result, although he acted with malice. In so doing, he commits no unlawful act for which an action will lie against him. Lindsay v. Larned, 17 Mass. 190. Randall v. Hazelton, 12 Allen, 412. The question whether Barry had a legal cause of action was involved in, and we think, as between these parties, could only be tried in, the replevin suit. The male plaintiff, being a party to that suit, would be bound by its result. If Barry had recovered a judgment in that suit, this action could not be maintained, because it would thus be conclusively settled that his act in replevying the goods was lawful. Any irregularity in the service of the writ of replevin must be taken advantage of in that suit, or it must be deemed to have been waived. The fact that this suit is for an injury to the wife does not take the case out of the operation of this rule. It is one of the incidents of the marriage relation, that the husband must join in such suit. It is substantially his suit; he can discharge it, and is entitled to the proceeds if judgment is recovered. Southworth v. Packard, 7 Mass. 95.

In an action for malicious prosecution, the plaintiff must show that the prosecution or suit complained of has been terminated by a judgment in his favor. In that suit only can the question whether the defendant had a good cause of action against the plaintiff be litigated. The reasons of the rule apply with equal force to an action like the present. It is against the policy of the law, that the same questions should be litigated between the same parties in successive suits. At the time this action was commenced, the replevin suit, which is alleged to be malicious and without probable cause, was pending; and a majority of the court is of opinion that, if the plaintiffs can under any circumstances maintain an action of this nature, this fact is decisive against this action. Johnson v. Shove, 6 Gray, 498.

Exceptions overruled.