Luby v. Bennett

• Decision Date: 05 November 1901
• Citation: 111 Wis. 613,87 N.W. 804
• Parties: LUBY v. BENNETT.
• Court: Wisconsin Supreme Court

111 Wis. 613

87 N.W. 804

LUBY

v.BENNETT.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Syllabus by the Judge.

1. A right of action for malicious prosecution will not accrue to a person till the wrongful action against him shall have proceeded to a final determination in his favor.

2. If a complaint, in an action to recover damages for a malicious prosecution, does not state that the wrongful action has been terminated in favor of the plaintiff, it will be open to demurrer for insufficiency.

3. It is not essential to the maintenance of an action for damages for a malicious prosecution that all the proceedings in such prosecution, proper to be had therein, took place before such action was commenced; it is sufficient if, before the commencement of such action, the issues material to the bona fides of the alleged malicious prosecution were decided and closed in favor of the defendant therein by a final judgment.

4. A judgment in an action which is subject to appeal to a higher tribunal than the one in which it was rendered, is nevertheless final for the purpose of an action to recover damages for the malicious prosecution thereof.

5. It is not necessary to allege in a complaint, in an action to recover damages for malicious prosecution, that judgment has been rendered in the wrongful action in favor of the defendant therein and that such judgment has not been appealed from or reversed; but it is sufficient to allege that judgment has been rendered in the wrongful action in favor of the defendant therein. Subsequent proceedings in such action, impairing the effect of such judgment as a foundation for an action for malicious prosecution, if not disclosed by the complaint, can only be taken advantage of by the defendant as defensive matter.

6. The general rule which prevails in England, and has the greater support of judicial and elementary authority in this country, is that a civil action, maliciously prosecuted, where neither the person nor the property of the defendant is interfered with, inflicting special damages to him, will not sustain an action for malicious prosecution.

7. An action to wind up a partnership on the ground of misconduct of the defendant partner, and the deprivation of such defendant, in such action, of his right to the possession and enjoyment of the partnership property, is not a civil action interfering with neither the person nor property of the defendant, within the general rule above stated. On the contrary, it belongs to that class of actions that will sustain an action for malicious prosecution because of the injury to the good name and fame of the defendant therein to an extent not remediable by a mere vindication of him upon the trial and a judgment for costs; moreover, it interferes with his property to all intents and purposes the same as an attachment thereof would, and in such a way that damages, other than those incident to an ordinary civil action maliciously prosecuted, are presumed.

8. In an action for damages for a wrongful interference with personal or property rights, a specific allegation as to damages, specifying the amount thereof, is not essential to the plaintiff's cause of action to recover such damages as are necessarily inferable from the facts alleged.

Appeal from circuit court, Rock county; Robert G. Siebecker, Judge.

Action by Daniel J. Luby against Chester C. Bennett. Judgment for plaintiff. Defendant appeals. Affirmed.

Action to recover damages. The complaint stated the following as a cause of action: Plaintiff and defendant, from March 27 to November 6, 1897, were copartners in the shoe business in Janesville, Wis. Plaintiff contributed to such business $4,400 in money and gave his personal attention thereto, which was reasonably worth $100 per month. The sales were $17,000, and there was a profit of 33 per cent. thereon, one-half of which justly belonged to plaintiff. On the last day named defendant maliciously and without probable cause commenced an action in the circuit court for Rock county, Wis., charging plaintiff, among other things, with having wrongfully taken from the assets of the firm, in goods and money, $2,000 to $2,500 and appropriated the same to his own use, and sold goods on credit without making any account thereof, intending to collect therefor and convert the proceeds to his exclusive benefit. The prayer was for a dissolutionof the partnership and for a receiver. Without notice to this plaintiff, defendant procured the appointment of himself as receiver, and thereafter, pursuant thereto, took exclusive control of the firm property and business, and subsequently sold the same at a great sacrifice, secretly bidding the property in for his own benefit, whereby plaintiff's interest in the firm assets was wholly lost to him. The purpose of the action brought by defendant as stated was to accomplish the result before stated. By reason of the facts plaintiff was injured in his good name, was caused much mental pain, was seriously prejudiced in his efforts to obtain profitable employment, and caused to expend upward of $1,500 in defending himself against the unjust action. Such proceedings were finally taken in such action that it was finally decided that the charges against plaintiff were false and malicious. Upon such facts plaintiff asked judgment in the sum of $10,000.

Defendant demurred to the complaint for insufficiency, and the demurrer was overruled.

Sutherland & Nolan, for appellant.

Winans & Russell, for respondent.

MARSHALL, J. (after stating the facts).

A right of action for damages for malicious prosecution does not accrue till the wrongful proceeding has been brought to final determination in favor of the defendant or person accused. Pratt v. Page, 18 Wis. 337;Winn v. Peckham, 42 Wis. 493, 499;Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. Rep. 135;Lawrence v. Cleary, 88 Wis. 473, 60 N. W. 793;Lowe v. Wartman, 47 N. J. Law, 413, 1 Atl. 489;Com. v. McClusky, 151 Mass. 488, 25 N. E. 72. Hence, as indicated in the authorities cited, in an action to recover compensation for such a wrong, such final determination must be distinctly alleged in the complaint and proved upon the trial, the same as any other fact essential to the cause of action, or the pleading will be open to successful challenge for insufficiency. Appellant now invokes that rule, but as we read the complaint it seems that it is very clearly alleged that the wrongful prosecution was ended by a judgment in favor of the defendant therein before this action was commenced. The meaning of the language of the pleading, “It was finally decided and adjudged in said action on the 25th day of September, 1900, that said action was without foundation, and was maliciously and unjustly begun and that this plaintiff was and had not been guilty of any wrong, and awarded this plaintiff judgment therein against the plaintiff therein (the defendant in this action),” leaves no room for reasonable controversy but that the alleged wrongful prosecution was closed by a judgment in favor of respondent prior to the commencement of this suit. It is said that the receiver appointed had not made his report when this action was commenced, and that it indicates that the alleged wrongful prosecution was not ended. The rule invoked does not require that all proceedings that may be had or are required in an action to finally work out or enforce the rights of the parties shall occur before a cause of action will accrue to the defendant therein to prosecute the plaintiff for maliciously commencing and carrying on such action. It requires only that the issues material to the question of the bona fides of such action shall be tried and closed by final judgment. That was done in the case in question, notwithstanding the provisional remedy or ancillary proceeding therein, to control, administer and preserve the property involved, to await the final determination of the rights of the parties, was not fully closed up.

It is suggested that the action cannot be said to have been finally closed when this action was commenced because the right of appeal from the judgment to this court existed. There is authority to the effect that a judgment in favor of the defendant in the alleged wrongful action, appealed from to a higher court, does not satisfy the element of want of probable cause, and is insufficient to sustain a suit for malicious prosecution of such action. Reynolds v. De Geer, 13 Ill. App. 113;Nebenzahl v. Townsend, 61 How. Prac. 353. In the first of such cases the decision went upon the ground that the alleged wrongful prosecution was in a justice court and that the appeal from the judgment opened up the whole matter, giving the plaintiff therein a right to a trial de novo; and in neither case was the question under discussion raised by an objection to the sufficiency of the complaint, but the status of the alleged wrongful prosecution was treated as matter of defense. Nebenzahl v. Townsend is supported by numerous citations from English authorities to the effect that the plea of a pending appeal from the judgment in the first action is a good defense. In Ingram v. Root, 51 Hun, 238, 3 N. Y. Supp. 858, it is said that it is essential to allege in the complaint that the judgment in plaintiff's favor in the first action has not been appealed from, or that it has been appealed from and affirmed. No authority is cited to support that view, and none which we may safely follow exists. The decision is out of harmony with all others in the New York courts, and contrary to the settled law as declared by its highest court, as is clearly evidenced by Marks v. Townsend, 97 N. Y. 590, where it was held that a final judgment, in an action alleged to have been maliciously brought, satisfies the essential element of a final determination of the wrongful prosecution in an action to recover damages for such a wrong, notwithstanding the right of appeal therefrom exists; and that, if an appeal has been...