Kolka v. Jones

• Decision Date: 29 April 1897
• Parties: JACOB KOLKA v. ANDY JONES
• Court: North Dakota Supreme Court

71 N.W. 558

6 N.D. 461

JACOB KOLKA v. ANDY JONES

Supreme Court of North Dakota

April 29, 1897

Appeal from District Court, Walsh County; Sauter, J.

Action by Jacob Kolka against Andy Jones. Judgment for plaintiff and defendant appeals.

Affirmed.

John A Sorley, (George A. Bangs, of counsel,) for appellant.

No action will lie for the prosecution of a civil action with malice and without probable cause when there has been no arrest or seizure of the property of the defendant, and no special injury sustained. Potts v. Imlay, 4 N.J.L 377, 7 Am. Dec. 603; Meyers v. Waller, 64 Pa. 289; Kramer v. Stack, 10 Watts, 115; Eberly v Rupp, 90 Pa. 259; MacNamee v. Minke, 49 Md. 122; Wetmore v. Mellinger, 18 N.W. 870; Mitchell v. Ry. Co., 75 Ga. 398; Ely v. Davis, 15 S.E. 878; Terry v. Davis, 18 S.E. 493; Bishop v. Am. P. Co., 51 F. 272; Rice v. Day, 51 N. N. Rep. 464; Gorton v. Brown, 27 Ill. 489; Lucy v. Ins. Co., 31 Ohio L. J. 22; Cooley on Torts 189; Addison on Torts § 863. To sustain the action there must be both a malicious motive and want of probable cause. C. C. Live Stock, etc. Co. v. Butchers' Union, 120 U.S. 141, 30 L.Ed. 614. Before attorneys fees can be allowed as damages there must be proof that they were actually incurred and their value must be shown. Mitchell v. Davies, 53 N.W. 363.

DePuy & DePuy, for respondent.

An action lies for the malicious prosecution of a civil action where neither the property nor personal rights of the defendant have been interfered with. Lipscomb v. Shofner, 33 S.W. 818; McCardle v. McLinley, 86 Ind. 538, 44 Am. Dec. 343; Lochenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58; McPherson v. Runyon, 43 N.W. 329; Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 316; Whipple v. Fuller, 11 Conn. 582, 29 Am. Dec. 330; Marburg v. Smith, 11 Kan. 554; Cox v. Taylor's Adm'r., 10 B. Monroe 17; Pangburn v. Bull, 1 Wend. 345; Easton v. Bank, 66 Cal. 123; Woods v. Finnell, 13 Bush. 629; Allen v. Cadman, 139 Mass. 136; Page v. Cushing, 38 Mo. 523; Frowman v. Smith, 12 Am. Dec. 265 n; Smith v. Burris, 106 Mo. 94; Vanduzor v. Linderman, 10 Johns 106; Hoyt v. Macon, 2 Colo. 113; Hall v. Laming, 31 N.J.L. 321, 86 Am. Dec. 213; Autcliff v. June, 45 N.W. 1019; Pope v. Pollock, 46 Ohio St. 367; Brand v. Hinchman, 36 N.W. 664; O'Neill v. Johnson, 55 N.W. 601; Brown v. Cope, 90 Mo. 377. Malice does not mean hatred or ill will, but includes ulterior or improper motive. Spear v. Hill, 30 N.W. 506; Johnson v. Ebberts, 11 F. 129. It may be inferred from want of probable cause. Louisville, etc. R. Co. v. Hendricks, 40 N.E. 82; Betting v. Ten Eyck, 82 Ind. 421; Heap v. Parish, 3 N.E. 549; Edgeworth v. Carson, 5 N.W. 282; Wertheim v. Altschuler, 12 N.W. 107; Murphy v. Hobbs, 5 P. 119. Appellant's motion to strike out all evidence in regard to attorneys fees as not proper, incompetent, irrelevant and immaterial was too general. It does not suggest any opposition to the quality of the evidence, and the assignment of error based upon this objection cannot be considered. Springer L. Co. v. Falk, 59 F. 707; Bright v. Ecker, 69 N.W. 824; Levine v. Ins. Co., 68 N.W. 855; Hauver v. Bell, 36 N.E. 6; Ladd v. Sears, 9 Oreg. 244; Hooper v. Ry. Co., 33 N.W. 314; Taylor v. Wendling, 24 N.W. 40; Mfg. Co. v. Pinch, 66 N.W. 340; Caledonia G. M. v. Noonan, 3 Dak. 189, 14 N.W. 426; Lungerhausen v. Crittenden, 61 N.W. 270; Perkins v. Buaas, 32 S.W. 240; Krolik v. Graham, 31 N.W. 307.

OPINION

CORLISS, C. J.

The plaintiff has recovered judgment against the defendant in an action for malicious prosecution of a civil suit. At the threshold of the case we are met with the contention that for the malicious institution and prosecution of a civil action without probable cause there is no remedy, unless the person of the defendant in such action has been arrested or his property seized therein, or unless there exists special circumstances removing the case from the category to which belong ordinary civil actions. On this very interesting question we find the decisions in hopeless conflict. In this jurisdiction it is an open question, and we shall therefore settle it upon principle and in accordance with the weight of argument, without reference to the number of authorities which can be arrayed upon the opposite sides, respectively, of this controversy. It may not be amiss, however, to remark that in our opinion the scales in which are balanced the relative weight of authority on this point have turned, and that now it is no longer true, as erstwhile it was, that the adjudications preponderate in favor of the English rule, that in the absence of the arrest of the person or of the seizure of property, or of other special circumstances, the successful defendant has no remedy, despite the fact that his antagonist proceeded against him maliciously and without probable cause. Favoring the English doctrine, we find the following authorities: Potts v. Imlay, 4 N.J.L. 330; Mayer v. Walter, 64 Pa. 283; Eberly v. Rupp, 90 Pa. 259; McNamee v. Minke, 49 Md. 122; Wetmore v. Mellinger, (Iowa) 64 Iowa 741, 18 N.W. 870; Mitchell v. Railroad, 75 Ga. 398; Ely v. Davis, (N. C.) 111 N.C. 24, 15 S.E. 878; Terry v. Davis, (N. C.) 114 N.C. 31, 18 S.E. 943; Rice v. Day, (Neb.) 34 Neb. 100, 51 N.W. 464; Gorton v. Brown, 27 Ill. 489. Opposed to the English rule, we marshal decisions from the States of Connecticut, New York, Minnesota, Kansas, Kentucky, Missouri, Colorado, Ohio, Louisiana, Michigan, Tennessee, Indiana, Vermont, Massachusetts, and California: Lipscomb v. Shofner, (Tenn. Sup.) 96 Tenn. 112, 33 S.W. 818; McCardle v. McGinley, 86 Ind. 538; Lockenour v. Sides, 57 Ind. 360; McPherson v. Runyon, (Minn.) 41 Minn. 524, 43 N.W. 392; Closson v. Staples, 42 Vt. 209; Whipple v. Fuller, 11 Conn. 582; Marbourg v. Smith, 11 Kan. 554; Cox v. Taylor's Adm'r., 49 Ky. 17, 10 B. Mon. 17; Pangburn v. Bull, 1 Wend. 345; Eastin v. Bank, 66 Cal. 123, 4 P. 1106; Woods v. Finnell, 76 Ky. 628, 13 Bush 628; Allen v. Codman, 139 Mass. 136, 29 N.E. 537; Smith v. Burrus, 106 Mo. 94, 16 S.W. 881; Johnson v. Meyer, 36 La.Ann. 333; Hoyt v. Macon, 2 Colo. 113; Brady v. Ervin, 48 Mo. 533; Antcliff v. June, (Mich.) 81 Mich. 477, 45 N.W. 1019; Pope v. Pollock, 46 Ohio St. 367, 21 N.E. 356; Brand v. Hinchman, (Mich.) 68 Mich. 590, 36 N.W. 664; O'Neill v. Johnson, (Minn.) 53 Minn. 439, 55 N.W. 601; Dolan v. Thompson, 129 Mass. 205; Sartwell v. Parker, 141 Mass. 405, 5 N.E. 807.

In the case at bar it appears that the defendant in the civil actions alleged to have been prosecuted maliciously and without probable cause was not arrested, and that his property rights were not in any manner interfered with. The suits complained of consisted of three successive actions instituted in justice's court upon the same claim, each case being voluntarily dismissed by the defendant herein when the day for trial arrived. Without at this point adverting more particularly to the facts, we will dispose of the question whether the action will lie, assuming the suit to have been maliciously brought without probable cause. We wish to settle the law in this state, not upon the peculiar features of this case, but upon the broad basis that the malicious prosecution of a civil action without probable cause is a legal wrong, for which the law will afford redress, without reference to any inquiry touching the seizure of property, the arrest of the person, or other special circumstances. Before the statute of Marlbridge (52 Hen. III.) an action for the malicious prosecution without probable cause of a mere civil action would lie. Closson v. Staples, 42 Vt. 209--214 Lockenour v. Sides, 57 Ind. 360; Lipscomb v. Shofner, (Tenn. Sup.) 96 Tenn. 112, 33 S.W. 818; Pope v. Pollock, 46 Ohio St. 367, 21 N.E. 356; 14 Am. & Eng. Enc. Law, 32. Why this rule should have been departed from after the act of 52 Hen. III. had been passed, is apparent from the language of that act. It gave to the defendant who had prevailed in the cause, not merely his costs, but also his damages, and, to make apparent the purpose of parliament to substitute this remedy for the action for malicious prosecution, these costs and damages were given only in actions which were malicious, and not in all actions generally. Railroad Co. v. McFarland, 44 N.J.L. 674. Subsequent legislation in England shows that the statute of Marlbridge was enacted, not as a general law regulating costs, but to afford a summary remedy to the successful defendant in place of the existing right of action to recover his damages on account of the malicious prosecution of a civil action against him. The statute of Gloucester (6 Edw. I. c. 1) gave the defendant costs where he recovered damages, and finally, by the act of 23 Hen. VIII. c. 15. the defendant was given costs in all cases in which he was successful, whether he recovered damages or not, provided the case was one in which the plaintiff could have recovered costs had he been the prevailing party. Railroad Co. v. McFarland, 44 N.J.L. 674--676. The act of the British parliament which was held to take away the existing cause of action for damages for the malicious prosecution of a civil suit was an act which in terms was limited to cases of that kind; and when it is remembered that it gave the defendant, not merely his costs, but also his damages, it is obvious that the statute was framed to give the successful defendant his remedy in the very case in which he was maliciously prosecuted, instead of compelling him to seek redress in an independent action. Between such legislation and the statutory enactments of this country on the subject of costs there is the widest possible difference. The statute of Marlbridge was limited to civil actions maliciously prosecuted, and gave the defendant the damages he had suffered because of such...