Allen v. Burdett

• Decision Date: 22 November 1921
• Docket Number: (No. 4253.)
• Citation: 109 S.E. 739
• Parties: ALLEN. v. BURDETT et al.
• Court: West Virginia Supreme Court

109 S.E. 739

ALLEN.

v.BURDETT et al.

(No. 4253.)

Supreme Court of Appeals of West Virginia.

Nov. 22, 1921.

(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Action by P. B. Allen against Charles D. Burdette and others. Judgment for the defendants, and the plaintiff brings error. Affirmed.

Morgan Owen, of Charleston, for plaintiff in error.

Byrne, Littlepage & Linn, S. B. Avis, Ivory C. Jordan and Price, Smith, Spilman & Clay, all of Charleston, for defendants in error.

RITZ, P. In this suit for malicious prosecution, or what is sometimes called a malicious abuse of civil process, the defendants interposed a plea of the statute of limitations of one year, to which plea plaintiff tendered a special replication in writing, which the lower court held was insufficient, and, the plaintiff making no other reply to the plea filed, judgment was rendered for the defendants, and this writ of error is prosecuted to review the same.

According to the allegations of the declaration, on the 24th of February, 1917, defendants instituted an involuntary proceeding in bankruptcy against the plaintiff in the District Court of the United States for the Southern District of West Virginia, to which petition the plaintiff filed a demurrer, which being overruled on the 12th of December, 1917, the cause was referred to a special master to ascertain and report upon the facts set up in said petition. The special master took the testimony and reported to the court that the plaintiff had not committed the acts of bankruptcy charged in said petition, and on the 1st day of October, 1918, the report of the special master was confirmed, and the said plaintiff adjudged not to be a bankrupt. This action was brought on the 17th of December, 1919, seeking to recover damages sustained by him by reason of that bankruptcy proceeding prosecuted against him. The defendants filed a plea of the statute of limitations, in which they aver that the plaintiff's cause of action did not accrue within one year before the commencement of this suit. Plaintiff demurred to this plea of the statute of limitations, which demurrer being overruled, he filed a special replication thereto, in which he averred that on the 15th day of October, 1918, he brought an action against the defendants in this suit upon the same cause of action herein set up, returnable to November rules, 1918; that a few days after the issuance of the summons in said cause he sought to secure the papers in the bankruptcy case for the purpose of preparing his declaration; that upon making application for said papers he was informed that they were in the hands of the attorney for the petitioners in the bankruptcy proceeding; that plaintiff, through his counsel, then called on said attorney and inquired if petitioners in the bankruptcy suit intended to prosecute an appeal from the judgment of the District Court, and was informed that they had not then decided what they would do; that knowing that it was necessary to aver in his declaration that the proceeding upon which the malicious prosecution suit was based was finally determined, and realizing that petitioners had until the 19th of November, 1918, in which to file a petition for rehearing in said bankruptcy proceeding, which would suspend the order entered therein on the 1st of October until disposition was made of the petition for rehearing, he, plaintiff's counsel, believed that the suit brought by him on the loth of October was premature, and for that reason did not file a declaration therein; that this conclusion was arrived at after diligent examination of the authorities and consultation with other reputable attorneys in regard to the right of the petitioners in the bankruptcy proceeding to appeal or file a petition for rehearing, and the time within which the same could be filed; that, coming to this conclusion, he did not file his declaration in said suit brought on the loth of October, but allowed the same to be dismissed at February rules, 1919, for failure to file such declaration, and that this suit for the same cause of action was instituted within one year from the dismissal of said first suit at February rules, 1919; that by reason of the institution of said first suitand its dismissal at rules for failure to file the declaration as aforesaid, plaintiff, by virtue of section 19 of chapter 104 of the Code (sec. 4432), might maintain this suit brought within one year after the dismissal of such first suit. Defendants demurred to this replication, and the court sustained their demurrer. The plaintiff declined to make any other replication to the plea of the statute of limitations, and the court rendered judgment in favor of the defendants thereon.

The plaintiff on this hearing insists that he is entitled to maintain this suit for two reasons: First, that having brought a suit which was dismissed within one year before the bringing of the present suit, the bar of the statute of limitations does not apply by reason of the provisions of section 19 of chapter 104 of the Code; and, second, that, inasmuch as petitioners in the bankruptcy proceeding had a right to appeal from the judgment of the District Court holding that the plaintiff was not a bankrupt, or to file a petition to rehear that judgment, his right to institute his suit for malicious prosecution did not accrue to him until the expiration of the time within which an appeal might be taken or a petition to rehear filed, which was less than one year prior to the institution of the present suit.

When does the right to institute suit for a malicious prosecution accrue? If it accrues upon the rendition of a final judgment by the court in which the alleged malicious prosecution was conducted, then the statute begins to run from the entry of such final judgment. If, however, it does not accrue until the right to appeal or to apply for a rehearing of such final judgment is barred, then, of course, the statute of limitations would not begin to run until the expiration of the time fixed by law for taking an appeal, or presenting a petition for rehearing. That there must be a determination of the suit which it is alleged is maliciously prosecuted is uniformly held, and the plaintiff here contends that there is no such final determination of that proceeding until the right to appeal is barred, as well as the right to file a petition to review or rehear; and especially is this true, according to his contention, where the plaintiff in the suit alleged to be maliciously prosecuted may appeal as matter of right from the judgment therein. Under...