Johnston v. Deidesheimer
| Decision Date | 02 February 1925 |
| Docket Number | 11065. |
| Citation | 232 P. 1113,76 Colo. 559 |
| Parties | JOHNSTON v. DEIDESHIMER et al. |
| Court | Colorado Supreme Court |
Department 3. Error to District Court, City and County of Denver; Geo F. Dunklee, Judge.
Action by William C. Johnston, Jr., against Marguerite Deidesheimer and another. Judgment of dismissal, and plaintiff brings error.
Reversed and remanded, with instructions.
Halsted L. Ritter, of Denver, for plaintiff in error.
George C. Manly and Everett E. Trout, both of Denver, for defendants in error.
The plaintiff in error, plaintiff in the court below, brought this suit against defendants to recover damages alleged to have been sustained by reason of two suits brought against him by defendant Marguerite Deidesheimer, which he claims were willfully, without right, and maliciously brought. A general demurrer to the complaint was sustained and judgment rendered dismissing the action. The plaintiff brings the case here.
The complaint alleged, inter alia, that the defendants conspired and confederated together to wrong and injure the plaintiff that they caused defendant Marguerite Deidesheimer to file the two suits against him; that they caused her at the same time to file and record in the office of the clerk and recorder lis pendens notices; that afterwards the actions were dismissed; that the actions were willfully and maliciously brought, without any right whatsoever in the plaintiff in that suit, and were for the purpose of deliberately preventing the plaintiff here from completing renting, or selling the apartments involved.
The defendants contend that the complaint does not state a cause of action, in that it does not allege want of probable cause and that the damages alleged are not recoverable; that the right to file a lis pendens notice is given by the Code, and in the filing for record of an instrument which one has a right to file he commits no wrong.
We think the averment in the complaint that the actions against plaintiff by defendant Marguerite Deidesheimer were instituted without right and maliciously, and with the intent and purpose to injure the plaintiff, is a sufficient allegation of want of probable cause. Assuredly, an action could not be instituted in such circumstances and at the same time there be probable cause for the action. Had the complaint stated that the suits were instituted without probable cause, it would have been sufficient, for, although the allegation 'without probable cause'...
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Westfield Development Co. v. Rifle Inv. Associates
...We have previously held that the filing of notice of lis pendens may be actionable as malicious prosecution. Johnston v. Deidesheimer, 76 Colo. 559, 561, 232 P. 1113, 1114 (1925); see also Albertson v. Raboff, 46 Cal.2d 375, 382, 295 P.2d 405, 410 (1956) (no privilege against action for mal......
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Hewitt v. Rice
...of a notice of lis pendens may form the basis of a claim for malicious prosecution." Id. at 504 (citing Johnston v. Deidesheimer, 76 Colo. 559, 560, 232 P. 1113, 1114 (Colo.1925)). We have consistently held that where a lis pendens forms the basis of a malicious prosecution claim, the lis p......
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Thompson v. Maryland Cas. Co.
...The filing of a notice of lis pendens may form the basis of a claim for malicious prosecution. See Johnston v. Deidesheimer, 76 Colo. 559, 561, 232 P. 1113, 1114 (Colo.1925); Westfield Dev. Co. v. Rifle Inv. Associates, 786 P.2d 1112, 1118-19 (Colo.1990); Kerns v. Kerns, 53 P.3d 1157, 1164 ......
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Johnson v. Moser
... ... 9,926, 3 Wash.C.C. 31; ... Grundy v. Crecent News & Hotel Co., 38 La.Ann. 974; ... Glascock v. Bridges, 15 La.Ann. 672; Johnston v ... Deidesheimer, 76 Colo. 559, 232 P. 1113." ... It ... nowhere appears that the defendant made a full and complete ... ...