American Motors Finance Co. v. Cleckler

• Decision Date: 25 April 1930
• Docket Number: No. 689.,689.
• Citation: 28 S.W.2d 274
• Parties: AMERICAN MOTORS FINANCE CO. et al. v. CLECKLER.
• Court: Texas Court of Appeals

28 S.W.2d 274

AMERICAN MOTORS FINANCE CO. et al. v. CLECKLER.

No. 689.

Court of Civil Appeals of Texas. Eastland.

April 25, 1930.

Rehearing Denied May 30, 1930.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Action by Wayne O. Cleckler against the American Motors Finance Company and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Smith & Browne, and Kirby, King & Overshier, all of Abilene, and S. A. Williams, of Dallas, for appellants.

W. E. Lessing and Scarborough, Ely & King, all of Abilene, for appellee.

HICKMAN, C. J.

In the court below appellee Wayne O. Cleckler recovered judgment for both actual and exemplary damages against appellants American Motors Finance Company and E. L. Haag. We have determined that the trial court erred in overruling the general demurrer of appellants to appellee's petition, and it will not therefore be necessary to make any statement with reference to the facts. The transcript contains an order overruling the general demurrer, and the action of the court in so doing is assigned as error. The petition upon which the case went to trial alleged that appellee had borrowed certain sums of money from appellant, American Motors Finance Company, for which sums he had executed his notes, payable in installments, and secured by chattel mortgages upon two certain automobiles, a Cadillac and a Franklin. That before the institution of this suit, and after appellee had made certain payments on the notes, he delivered to said appellant the Cadillac automobile, which said appellant sold for an amount exceeding the balance remaining unpaid on the notes, certain credits being claimed on the notes by the alleged payment of usurious interest. The transactions were pleaded in detail, and may be summarized by the statement that the petition alleged full payment by appellee of the indebtedness securing the mortgages.

The petition then alleged that appellant E. L. Haag, acting as agent for the other appellant, for the purpose of wrongfully extorting money from the appellee, which he did not owe, "did go before the County Attorney of Taylor County and swear out a warrant against this plaintiff, charging him with having violated the laws of his country, and charging him with a felony, to-wit, the disposition of mortgaged property for the purpose of defrauding his creditors." It is alleged that the complaint was caused to be filed by appellants willfully, maliciously, and without probable cause, and for the sole purpose of injuring appellee.

Follow then the following allegations:

"Which said complaint was sworn to by the said E. L. Haag, before Frank E. Smith, the then duly acting and qualified County Attorney of Taylor County, Texas, and was by said County Attorney duly filed with the said M. C. Lambeth, Justice of the Peace as aforesaid, who, acting upon the information therein contained, issued a warrant for the arrest of this plaintiff, by virtue of which warrant this plaintiff was arrested by the officers of said court, and on said January 29th, 1929, brought before said magistrate for an examination upon said charge, whereupon said defendants, although knowing full well that the charge so made was false and had been made by them maliciously and for the sole purpose of injuring this plaintiff, caused said magistrate to bind this plaintiff over to await the action of the Grand Jury of said county.

"That by reason of such false, wilful and malicious acts of the defendants, this plaintiff was confined in the county jail of Taylor County from about 10 o'clock P. M. of the 29th day of January until about 3 o'clock P. M. of January 30, 1929, and was thereafter restrained of his liberty until about the 18th of February, 1929, by reason of being under bond to await the action of the Grand Jury as hereinbefore alleged."

Facts were then alleged showing the falsity of the charge contained in the complaint, and knowledge of the falsity on the part of the appellants. Actual and exemplary damages were prayed for.

The petition did not allege that the prosecution had ended. It is the settled law in this state that, to support an action for malicious criminal prosecution, the plaintiff must prove, along with other essential facts, that the prosecution has terminated in his acquittal. Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Glasgow v. Owen, 69 Tex. 168, 6 S. W. 527, 531; McManus v. Wallis, 52 Tex. 534; Hurlbut v. Boaz, 4 Tex. Civ. App. 371, 23 S. W. 446; Von Koehring v. Witte, 15 Tex. Civ. App. 646, 40 S. W. 63; Reed v. Lindley (Tex. Civ. App.) 240 S. W. 348.

The elements of this character of action are clearly and briefly stated in Glasgow v. Owen, supra, as follows: "The cause of action is not complete until the prosecution has ended. It could not be known whether there was any injury or not until there was an acquittal of the charge, nor what the extent of the injury might be. The suit cannot be maintained at all if there is a final conviction. To maintain the action, it must be shown that there was a prosecution; that it was malicious; that it was without probable cause; and that the prosecution is at an end. McManus v. Wallis, 52 Tex. 535; Usher v....