This is an appeal from a summary judgment holding that “filing away” a criminal warrant was not a final determination thereof' in 'favor of appellant, Howard L. Van Arsdale, such as to support an action of malicious prosecution against appellee, Paul Caswell, who swore out the warrant.
On the afternoon of August 20, 1956, appellant in .parking his car on a Louisville street struck one that appellee Caswell had in his possession. Appellant and appellee had an argument and appellee swore to a warrant against appellant charging him with driving a car while under the influence of intoxicants. In an hour or so members of the Louisville Police Department, when they went to serve this warrant on appellant in his home, were met by him with a gun in his hand. The officers placed an additional charge against appellant of pointing a deadly weapon.
When the two cases came on for trial on September 27, in the Louisville Police Court, Traffic Division, the warrant for ■driving an automobile while under the in *406 fluence of intoxicants was “filed away.” The charge of pointing a deadly weapon was amended to disorderly conduct and appellant was fined $25.
On November 30, 1956, appellant filed this suit against appellee for malicious prosecution, alleging appellee falsely, maliciously and without probable cause made oath before the clerk of the Louisville Police Court in which he charged appellant with “wilfully, feloniously, and unlawfully driving his automobile while under the influence of alcoholic beverages.” Appellant asked $10,000 compensatory damages and $5,000 punitive damages. Appellee filed answer denying he maliciously or falsely charged appellant with drunken driving. He took appellant’s deposition upon discovery and elicited from him that the warrant charging drunken driving was “filed away” in the police court. Appellee’s motion for summary judgment was sustained and this appeal followed.
It is well settled in this state that before a suit for malicious prosecution may be maintained, the plaintiff must aver and prove the action alleged to have been maliciously prosecuted has finally terminated in his favor, which is a condition precedent to the maintenance of an action for malicious prosecution. Conder v. Morrison,
Appellant insists the order “filing away” the warrant for drunken driving finally disposed of same, while appellee earnestly contends it merely continued indefinitely the prosecution of the warrant.
Appellant chiefly relies on Aikman v. South,
Phillips v. Arnett,
Goff v. National Rubber & Leather Co.,
In Commonwealth v. Davis,
It was said in Sebastian v. Rose,
In Jones v. Blankenship,
In Jones v. Com.,
Ordinarily a defendant in a criminal prosecution is happy to have the charge against him “filed away” as from a practical standpoint it usually means the end of a prosecution. However, it is error for the trial court to enter such an order over the objection of accused.
In the case at bar appellant appended to his reply brief a copy of what purports to be a motion he made in the police court asking that the “filed away” order be set aside and the charge of drunken driving against him either be dismissed or that he be given a trial thereon. However, no such motion appears in the record and the record is what confronts us in deciding a case and it cannot be supplemented by papers appended to a brief.
The amicus curiae brief of the Louisville Police Officers Association vigorously argues trial courts are justified in “filing away” a warrant or indictment as it protects citizens and police officers from suits for malicious prosecution, since such an order indefinitely continues the case and prevents a final determination thereof. The answer to that argument is that the mere termination of a criminal prosecution does not give the defendant therein a right of action for malicious prosecution. He must allege and prove that he has been accused of a crime without probable cause.
*408 The amicus curiae brief of the Kentucky-Civil Liberties Union takes the position that one accused of crime should not be deprived of his constitutional right of a speedy trial just because he may file a malicious prosecution suit against his accuser if the criminal prosecution is finally terminated in his favor. To this we agree.
We thus summarize our holding. An order “filing away” an indictment or a criminal warrant is not a final determination thereof but is an indefinite continuance of the case which may be reinstated on the docket upon reasonable notice at any time after such an order is entered. It is error on the part of the trial court to enter an order “filed away” over the objection of the accused who is entitled to have the indictment or criminal warrant against him either tried or dismissed. If the court should refuse either to try or dismiss the case and enter over accused’s objection an order “filed away,” then for the purpose of appeal the “filing away” order is final and an appeal may be taken therefrom. Should appellant Van Arsdale after due notice to the commonwealth attorney, or to' the prosecuting attorney in the Louisville Police Court, Traffic Division, demand a trial upon the warrant charging him with drunken driving which was “filed away,” the court either will grant him a trial or dismiss the warrant.
The judgment is affirmed.