48 F.2d 1016 | D.C. Cir. | 1931
An appeal from an order dismissing a petition claiming damages for malicious prosecution of a civil ease.
The appellant as plaintiff below filed a declaration containing in substance the following allegations, to wit: That in February, 1925, plaintiff was the owner of lots 31, 32, 33, and 34 in square 1749', in a subdivision of Washington, and conveyed the same to the Century Homes Corporation, receiving as consideration the promissory note of the corporation for $8,000 secured by a deed of trust upon the lots, and an agreement that lot 34 should be reeonveyed to her after the erection of a house thereon; that the Century Homes Corporation fraudulently induced plaintiff to withhold the deed of trust from record, and thereupon fraudulently and without consideration delivered its promissory note for $5,000' with a deed of trust on lot 31, to a “straw man,” who in turn delivered the same to the defendant the Union Finance Company as the principal in the fraudulent transaction; that defendants Ward, Brayshaw, Hurst, Roth, and Hill were officers and agents of the Union Finance Company, and promoted the fraud; that in January, 1926, plaintiff discovered the fraud, and induced the Century Homes Corporation to convey the four lots to Kinnear and Smoot as trustees to carry out the terms of the original contract; but before the trus
The declaration was rightly dismissed, for the reason that the suit brought by the Union Finance Company against the appellant did not seek or cause an arrest of her person, or a seizure of her property, or placing her in bankruptcy, or any similar proceeding. The declaration sought no special relief against the appellant, but prayed the court to appoint a receiver who would administer the assets and equities of the insolvent Century Homes Corporation under the directions of the court. In fact, the appellant possessed no legal title to the lots in question at that time, for this was vested in Kinnear and Smoot as trustees. It is true that appellant had an equitable interest in the rightful performance of the trust by them, and accordingly was a proper party in the case, but under the circumstances this may be said also of the Union Finance Company and the other creditors of the Century .Homes Corporation. Moreover, the decree of the lower court rendered in the equity case, wherein appellant was a "party, found that the claim of the Union Finance Company against the Century Homes Corporation upon the $5,000 promissory note was valid. Its validity cannot now be impeached collaterally by appellant. Under the circumstances disclosed by the declaration, an action for malicious prosecution cannot be maintained against appellees.
In respect to such actions in general the following statement appears in 18 R. C. L. 13, § 3: “In this country, while the institution of á civil suit maliciously and without probable cause is generally considered to constitute a sufficient basis for an action for malicious prosecution at the instance of one who has suffered special damage, the authorities are in hopeless conflict as to whether 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.”
In our opinion the greater weight of authority in this country and the better reasoning support the view that no action will lie for the recovery of damages sustained by the prosecution of a civil action with malice, and without probable cause, when there has been no arrest of the person or seizure of the property of the defendant, and no special injury sustained, which would not necessarily .result in all suits prosecuted to recover for like causes of action. “This doctrine is supported by the following consideration: The courts are open and free
“If every suit may be retried on an allegation of malice, the evils would be intolerable, and the malice in each subsequent suit would be likely to be greater than the first.” 1 Cooley on Torts, p. 350 (Ed. 1906).
In Cincinnati Daily Tribune Co. v. Brack, 61 Ohio St. 489, 56 N. E. 198, 76 Am. St. Rep. 433, the Supreme Court of Ohio held that as a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property. In that ease a stockholder of an incorporated newspaper company, maliciously and without probable cause, commenced a suit against the company for dissolution and the appointment of a receiver, to the great injury of the company. The application was denied and the suit was dismissed. The court held that these facts did not constitute a cause of action, entitling the defendant to relief by way of damages, as there was no arrest of the person or seizure of property.
This view is sustained by many authorities, among whieh are McNamee v. Minke, 49 Md. 122; Supreme Lodge American Protective League of Baltimore City v. Unverzagt, 76 Md. 104, 24 A. 323; Pye v. Cardwell, 110 Tex. 572, 222 S. W. 153; Muldoon v. Rickey, 103 Pa. 110, 49 Am. Rep. 117; Smith v. Michigan Buggy Co., 175 Ill. 619, 51 N. E. 569, 67 Am. St. Rep. 242; Bitz v. Meyer, 40 N. J. Law, 252, 29 Am. Rep. 233; Peterson v. Peregoy, 180 Iowa, 325, 163 N. W. 224; Abbott v. Thorne, 34 Wash. 692, 76 P. 302, 65 L. R. A. 826, 101 Am. St. Rep. 1021; Luby v. Bennett, 111 Wis. 613, 87 N. W. 804, 56 L. R. A. 261, 87 Am. St. Rep. 897.
The judgment of the lower court is affirmed, with costs.