Martin v. Cedar Lake Ice Co.

• Decision Date: 07 May 1920
• Docket Number: No. 21755.,21755.
• Citation: 177 N.W. 631,145 Minn. 452
• Parties: MARTIN v. CEDAR LAKE ICE CO. et al.
• Court: Minnesota Supreme Court

145 Minn. 452

177 N.W. 631

MARTIN

v.CEDAR LAKE ICE CO. et al.

No. 21755.

Supreme Court of Minnesota.

May 7, 1920.

Appeal from District Court, Hennepin, County; Daniel Fish, Judge.

Action for malicious prosecution by John O. Martin against the Cedar Lake Ice Company and others. Judgment for defendants on the pleadings, and, from an order denying his motion for a new trial, plaintiff appeals. Order affirmed.

Syllabus by the Court

A plaintiff cannot maintain an action for malicious prosecution of a civil suit wherein judgment was obtained against him upon the claim sued on. The existence of the judgment establishes the validity of the claim so that the transfer thereof prior to suit cannot be held wrongful. W. H. Place and W. H. Adams, both of Minneapolis, for appellant.

S. Meyers and C. R. Empey, both of Minneapolis, for respondents.

HOLT, J.

Action for malicious prosecution of a civil action. The court granted defendants' motion for judgment on the pleadings, and plaintiff appeals from the order denying his motion for a new trial.

Plaintiff alleged that, when he was adjudged a bankrupt in the fall of 1914, he owed the defendant Cedar Lake Ice Company $59.33; that the company filed its claim in the bankruptcy proceeding, and on March 31, 1915, was paid by the trustee therein $9.01, its pro rata share of the estate; that on February 13, 1915, plaintiff was duly discharged from all provable claims and debts by the bankruptcy court; that two years later the defendant Flanery began an action in the municipal court of Minneapolis to recover of plaintiff $59.33, claiming that the Cedar Lake Ice Company had assigned its said claim to him; that plaintiff employed an attorney who interviewed both defendants and was told by the company that a mistake had been made and it would cause the action to be dismissed and by Flanery that he would investigate and, if he found that plaintiff (the defendant) had been discharged of all his debts in the bankruptcy proceeding he would dismiss the suit; that defendants disregarded their promises and entered judgment by default in said action on March 28, 1917, and a year later instituted garnishment to enforce the judgment so obtained; that defendants acted maliciously and without probable cause in attempting to deal in or with said claim and in instituting said action and the ancillary garnishment; that the judgment now stands in said municipal court against plaintiff (the defendant in the action therein) in the sum of over $70; that plaintiff has spent $25 for attorney's services in an attempt to have the judgment vacated; and that he has been damaged in the sum of $5,000. The answers admitted the existence of the judgment.

[1][2] Before an action for malicious prosecution of a civil suit may be maintained, the plaintiff must allege and prove a termination of the original proceeding in his favor. Pixley v. Reed, 26 Minn. 80, 1 N. W. 800; 18 Rul. Case Law, p. 21, § 11; 26 Cyc. pp. 55 and 76. Here the allegation is that the judgment in the action claimed to have been instituted without probable cause and maliciously still remains in full force and effect. There are a few exceptions to the general rule stated, as, for...