Ely v. Davis

• Decision Date: 11 October 1892
• Citation: 15 S.E. 878,111 N.C. 24
• Parties: ELY et al. v. DAVIS et al.
• Court: North Carolina Supreme Court

15 S.E. 878

111 N.C. 24

ELY et al. v. DAVIS et al.

Supreme Court of North Carolina

October 11, 1892

Appeal from superior court, Pasquotank county; GEORGE A. SHUFORD Judge.

Action by Timothy Ely and another against John F. Davis and others for malicious prosecution. Complaint dismissed. Plaintiffs appeal. Affirmed.

A complaint in an action for malicious prosecution, which fails to allege want of probable cause, or facts which, if proved would establish the same, is properly dismissed.

Harvey Terry, for appellants.

MACRAE J.

Upon the demurrer ore tenus, we are to decide whether the complaint states grounds sufficient to constitute a cause of action. After alleging that in 1885 the defendant Davis had brought an action in the superior court of Pasquotank county against the plaintiffs, in which it was charged that the said Terry had made false and fraudulent representations with regard to the number of acres in a certain tract of land, and had procured by fraud the omission of a tract of land from a certain deed of partition, and after alleging that said charges were false and malicious, and that defendant Davis was assisted in bringing the said action by the other defendants, the plaintiffs make three distinct averments of damage upon which they demand judgment, as will appear by reference to articles 5, 6, and 7 of the complaint. This then, is an action to recover damages for malicious prosecution, and we are met at the threshold with the fact that there is no allegation in the complaint of want of probable cause, nor statement of facts which if proved would establish the want of probable cause, in the alleged malicious charge of fraud and false representation. This omission is in itself fatal to plaintiffs' action. In the multiplicity of authority that both malice and the want of probable cause must be alleged and proven, to sustain such an action, we are content to refer to Williams v. Hunter, 3 Hawks, 545; Kirkham v. Coe, 1 Jones, (N. C.) 423; Hewit v. Wooten, 7 Jones, (N. C.) 182; Burnett v. Nicholson, 79 N.C. 548; Barfield v Turner, 101 N.C. 357, 8 S.E. Rep. 115. We may as well say that the law seems to be settled by the weight of authority, although there are some decisions to the contrary that an action will not lie for malicious prosecution in a civil suit unless there was an arrest of the person, or seizure of property, as in attachment proceedings at law or their equivalent in...