108 Kan. 496 | Kan. | 1921
The opinion of the court was delivered by
This was an action to recover damages for the malicious prosecution of a civil suit. A demurrer to the plaintiff’s evidence was sustained and judgment given for defendant, from which plaintiff appeals.
In the original action E. W. Smay alleged that Gardner P. Walker and three others cut down trees growing upon Smay’s land and converted the timber taken therefrom to their own use, and he asked for treble damages because of the trespass. The trial of that case resulted in a judgment for Walker. Soon afterwards, Walker commenced the present action charging that the former action had been brought maliciously and without probable cause, and further that in connection with the suit Smay had caused a groundless garnishment process to issue. When ‘plaintiff had offered his evidence in this case a demurrer thereto was sustained, and the contention here is
We think the facts and circumstances about which there was no conflict amounted to probable cause, and was a question of law for the court. (Michael v. Matson, 81 Kan. 360, 105 Pac. 637.)
An examination of the evidence satisfies us that the question was rightly decided by the court and we see no error in the ruling sustaining the demurrer to plaintiff’s evidence.
The judgment is affirmed.