Kearney v. Mallon Suburban Motors Inc.

• Decision Date: 14 February 1945
• Parties: KEARNEY v. MALLON SUBURBAN MOTORS, Inc., et al.
• Court: New Jersey Circuit Court

41 A.2d 274

KEARNEY

v.MALLON SUBURBAN MOTORS, Inc., et al.

Circuit Court of New Jersey, Essex County.

Feb. 14, 1945.

Action by William B. Kearney against Mallon Suburban Motors, Inc., and another for malicious prosecution and for conspiracy to maliciously prosecute. On defendants' motion for a judgment on the pleadings.

Motion denied.

James F. X. O'Brien, of Newark for plaintiff.

Haines & Chanalis, of Newark (Patrick J. Maloney, of Newark) for defendants.

WILLIAM A. SMITH, Judge.

This action is one instituted by the plaintiff to recover on two counts; the first count being an action for malicious prosecution and the second count being an action alleging a conspiracy to maliciously prosecute.

Motion was made before me for judgment on the pleadings on the ground that the complainant is barred by the Statute of Limitations, in that the cause of action arose on a refusal by the Grand Jury to indict on the complaint alleged to have been maliciously prosecuted by a vote taken on April 20, 1942, and that the suit was not instituted within two years thereafter.

On the coming on of the motion the parties agreed that they would stipulate that the case be tried before the Court without a jury on stipulation of facts separately on the issues of the question of the action being barred by the Statute of Limitations.

The stipulation of facts has attached to it the affidavits of William J. Caffrey, the clerk of the Essex County Grand Jury, and of the plaintiff, which are to be taken by the Court as evidence.

The complaint against the plaintiff was presented to the April Term 1942 Grand Jury of Essex County. A hearing was had by that jury on April 20, 1942, and they voted to take no action on the complaint. No announcement of this determination was made, and inquiries by the plaintiff during the April Term of the Grand Jury, which expired in September, 1942, elicited no information to the plaintiff, who first obtained information that the Grand Jury had refused to indict on November 17, 1942. His bail was then cancelled and he was discharged from custody.

It is evident that there is no practice on the part of the Grand Juries of Essex County of making known their determination not to indict before the end of the term.

It is claimed by the defendants that the Grand Jury, having voted on April 20, 1942, not no indict, that the plaintiff's cause of action of malicious prosecution then arose because it was then determined that the prosecution against the plaintiff had been determined in his favor. It is then urged by the defendants that this action not having been commenced until August 9, 1944, the action was instituted more than two years after it arose and, therefore, the action is barred by the Statute of Limitations.

The determination of the Grand Jury not to indict by a vote to that effect terminated the pending proceeding on the criminal complaint made by the defendant which is charged as the malicious prosecution.

Justice Parker in Lowe v. Wartman, 47 N.J.L. 413, 1 A. 489, 490, in passing on the question of when the criminal prosecution is terminated so as to give rise to a cause of action for malicious prosecution, said:

‘A criminal prosecution may be said to have been terminated (1) where there is a verdict of not guilty; (2) where the grand jury ignore a bill; (3) where a nolle prosequi is entered; and (4) where the accused has been discharged from bail or imprisonment.’

This is authority to the effect that a vote not to indict ends the prosecution. It is proof that the Grand Jury ignored the bill.

Justice Depue, in Apgar v. Woolston, 43 N.J.L. 57, at page 65, says:

‘In this state the refusal of the grand jury to find an indictment has been adjudged to be a sufficient termination of the prosecution, without any formal order of the court discharging the accused.’ He cites Potter v. Casterline, 41 N.J.L. 22.

It is my conclusion, therefore, that the plaintiff's cause of action did arise when the Grand Jury voted not to indict, and, therefore, the cause of action arose on April 20, 1942.

It being established that the cause of action arose on April 20, 1942, it is now contended by the defendants in their plea of the Statute of Limitations that the plaintiff's cause of action was not commenced within two years after it arose, this action having been instituted on August 9, 1944, which is more than two years after it arose.

The plaintiff's contention is that this cause of action of malicious prosecution is not barred by the Statute of Limitations until six years after the cause of action arose.

The six-year Statute of Limitations, N.J.S.A. 2:24-1, provides in part as follows:

‘All actions in the nature of * * * actions in the nature of actions upon the case, except the actions mentioned in section 2:24-2 and section 2:24-3 of this title, shall be commenced within six years next after the cause of any such action has accrued, and not thereafter. * * *’

The exception to the six-year provision referred to in 2:24-2 is the two-year statute, which provides as follows:

‘All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, firm or firms, individual or individuals, corporation or corporations within this state shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter.’

In order to interpret these provisions it will be necessary to look back to the old Statute of Limitations and apply the previous decisions construing them.

Under the revision of 1874, 2 Gen.Stat. of N.J.1895, p. 1974, there were three provisions with regard to the limitation of personal actions. They were Section 1, the six-year limitation; Section 2, the four-year limitation, and Section 3, the two-year limitation.

The action for malicious prosecution is an action on the case and the six-year limitation provision under the revision of 1874 limited actions on the case to six...