King v. Estabrooks

• Court: Vermont Supreme Court
• Writing for the Court: ROWELL, C. J.
• Citation: King v. Estabrooks, 60 A. 84, 77 Vt. 371 (Vt. 1905)
• Decision Date: 09 March 1905
• Parties: KING v. ESTABROOKS.

60 A. 84

77 Vt. 371

KING

v. ESTABROOKS.

Supreme Court of Vermont. Caledonia.

March 9, 1905.

Exceptions from Caledonia County Court; Watson, Judge.

Action by Charles L. King against Henry F. Estabrooks. From a judgment sustaining a demurrer to the declaration, plaintiff excepts. Affirmed.

Argued October term, 1904, before ROWELL, C. J., and TYLER, MUNSON, START, HASELTON, and POWERS, JJ.

May & Hill and R. W. Simonds, for appellant Porter & Thompson, for appellee.

ROWELL, C. J. This is case for a malicious suit The new count which is the only one in question, alleges that the defendant, not having any reasonable or probable cause of action, brought trover against the plaintiff, returnable before a justice, and caused him to be arrested and imprisoned on the writ; that the plaintiff appeared on the return day, ready for trial, but that the defendant told him he need pay no more attention to the case, and that the defendant would go to the plaintiff's place and get the property sued for, which the plaintiff told him he had, and was ready and willing, and always had been, to deliver to him; that the plaintiff thereupon went home, relying on what the defendant had said, and paid no further attention to the case; that after the plaintiff went home the defendant caused the case to be continued without the knowledge or consent of the plaintiff, and in like manner caused it to be further continued from time to time, until at last the defendant caused a judgment by default to be entered therein, and the damages to be assessed at a large sum, and a certified execution to be issued, of all which the plaintiff was ignorant until he was arrested on the execution and committed to jail. The count alleges that the defendant did all this fraudulently, without probable cause, for the purpose of further imprisoning, harassing, and oppressing the plaintiff; that the plaintiff brought his petition for an appeal on the ground of fraud, accident, and mistake, and prevailed, and entered his appeal in the county court, whereupon the defendant, at the next term, discontinued his case and paid the plaintiff's costs, whereby the case was finally ended.

It is objected that said count is double because it alleges a malicious suit and a fraudulent judgment, and therefore sets up two causes of action. But, as the plaintiff contends, the fraudulency of that judgment is not declared upon as a cause of action, for it was necessary to set up the judgment, and to show that it was vacated and the suit finally ended in favor of the plaintiff. And being set up—not considering whether a voluntary discontinuance is sufficient evidence of want of probable cause and malice to justify a finding of...