Connelly v. White

• Decision Date: 25 January 1904
• Parties: FRANK CONNELLY v. C. N. WHITE, Appellant
• Court: Iowa Supreme Court

98 N.W. 144

122 Iowa 391

FRANK CONNELLY v. C. N. WHITE, Appellant

Supreme Court of Iowa, Des Moines

January 25, 1904

Appeal from Jackson District Court.--HON. W. F. BRANNAN, Judge.

ACTION to recover damages for the malicious prosecution of a civil action aided by attachment. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Wynkoop & Fort for appellant.

F. J Campbell and F. D. Kelsey for appellee.

OPINION

MCCLAIN, J.

The defendant in this case instituted against the plaintiff in this case an action before a justice of the peace to recover damages for breach of contract, in which it was alleged that the defendant in the action before the justice of the peace was about to remove his property out of the state without leaving sufficient remaining for the payment of his debts and asking on that ground the issuance of a writ of attachment, which writ was duly issued by the justice, and levied on the property of defendant in that action. The judgment in the justice's court was against the plaintiff in that action, and he appealed to the district court, and a like judgment was rendered. The defendant in the action before the justice of the peace sues as plaintiff in the action now before us to recover damages for the wrongful and malicious prosecution of the suit.

It is well settled in this state that such an action may be maintained. Carraher v. Allen, 112 Iowa 168, 83 N.W 902. The action differs in some respects from that authorized by Code 1897, section 3887, on an attachment bond. In the action on the bond the plaintiff may recover if he shows that the attachment was wrongfully sued out, and there was no reasonable cause to believe the ground upon which the same was issued to be true, while in an action for malicious prosecution the plaintiff must not only show that the action complained of was wrongfully brought--that is, without probable cause--but also that it was malicious. The fact that, in the action complained of, judgment was rendered for the defendant, thus showing that he had no cause of action, is sufficient, in the absence of any proof of circumstances indicating that there was reasonable belief on his part that he had a good cause of action, to establish the want of probable cause. If circumstances are proved showing reasonable ground of belief as to the existence of a cause of action, the question is for the jury, under instructions of the court as to what constitutes probable cause. Johnson v. Miller, 69 Iowa 562, 29 N.W. 743; Olson v. Neal, 63 Iowa 214, 18 N.W. 863. The fact that the action was commenced and prosecuted without probable cause may be considered by the jury on the question of malice. Actual malicious purpose or personal ill will is not essential to constitute the legal malice which must be shown to support an action for malicious prosecution. The malice required to support the action may be inferred by the jury from want of probable cause. Parker v. Parker, 102 Iowa 500, 71 N.W. 421; Walker v. Camp, 63 Iowa 627, 19 N.W. 802; Smith v. Howard, 28 Iowa 51; Ritchey v. Davis, 11 Iowa 124; Center v. Spring, 2 Iowa 393; Jones v. Fruin, 26 Neb. 76 (42 N.W. 283); Collins v. Shannon, 67 Wis. 441 (30 N.W. 730); Smith v. King, 62 Conn. 515 (26 A. 1059). As is well said in Pullen v. Glidden, 66 Me. 202: "To maintain his case, it was necessary for the plaintiff to prove malice in fact, as distinguished from malice in law. Malice in law is where malice is established by legal presumption from proof of certain facts, as in actions for libel, where the law presumes malice from proof of the publication of the libelous matter. Malice in fact is to be found by the jury from the evidence in the case. They may infer it from want of probable cause. But it is well established that the plaintiff is not required to prove express malice, in the popular signification of the term, as that defendant was prompted by malevolence, or acted from motives of ill will, resentment, or hatred toward the plaintiff. It is sufficient if he prove it in its enlarged legal sense."

As to these propositions of law there is no real dispute between counsel; nor is there any contention on behalf of appellant that there was no evidence to support the verdict of the jury, if they were properly instructed as to the law. Some question is made as to the admissibility of certain evidence, but, as the rulings relating to the admission of evidence are not assigned as error, we need not consider them.

The only questions properly presented to us are as to the correctness of the court's instructions, and its action in refusing instructions asked for appellant. It is objected that the court made the fact of the judgment in the original case conclusive on the question of probable cause, but we do not find that the instructions given should be so construed. The law on this subject is correctly stated in one instruction, and, in those which follow, the jurors are told that if, on a trial of the case in which the attachment issued, the judgment of the court is against the person who sued out the writ of attachment, this would be proof that nothing was owing to him, and that the writ of attachment was wrongfully sued out....