McCormick Harvester Mach. Co. v. Willan

• Decision Date: 18 December 1901
• Citation: 63 Neb. 391,88 N.W. 497
• Parties: MCCORMICK HARVESTER MACH. CO. v. WILLAN.
• Court: Nebraska Supreme Court

63 Neb. 391

88 N.W. 497

MCCORMICK HARVESTER MACH. CO.

v.WILLAN.¹

Supreme Court of Nebraska.

Dec. 18, 1901.

Syllabus by the Court.

1. Damages are recoverable for the prosecution, maliciously and without probable cause, of a civil action in which there has been no restraint of the person or seizure of property.

2. An instruction which submits to the jury an inquiry of fact concerning which there is no evidence is reversible error.

Commissioners' opinion. Department No. 3. Error to district court, Lancaster county; Tuttle, Judge.

Action by Madison Willan against the McCormick Harvester Machine Company. Judgment for plaintiff, and defendant brings error. Reversed.Ricketts & Wilson, for plaintiff in error.

Morning & Berge, for defendant in error.

AMES, C.

This is an action to recover damages for malicious prosecution. The facts, to the extent that a recital of them is deemed requisite for the purposes of this opinion, are disclosed, practically without dispute, in the record, as follows: The plaintiff in error had in its possession certain notes executed to it by the defendant in error and another, and from which it was contended by the defendant in error that he had, for a valuable consideration, been released by an agreement between the parties, and upon which otherwise an action was barred by the statute of limitations. Well knowing that upon either or both grounds no right of action existed upon the instruments, the plaintiff, after having, through its agents, demanded and been refused payment, maliciously and for the purpose of injuring and annoying the defendant, at successive times prosecuted suits upon them before justices of the peace in out of the way places in counties far distant from the county of the defendant's residence, which suits were, however, abandoned and dismissed after the defendant had been put to great inconvenience, labor, and expense in preparing to defend against them. For the purpose of giving colorable jurisdiction to the justices, the plaintiff procured irresponsible persons residing in the counties in which the suits were being brought to become apparently bound upon the notes by indorsement of them. The defendant in error (plaintiff below) recovered a verdict and judgment in the district court, which it is sought to reverse by this proceeding. A large number of alleged errors are assigned, two only of which do we think it necessary to decide upon.

The plaintiff in error contends that an action for damages for malicious prosecution will not lie when the proceeding complained of is a civil suit in which there has been no restraint of the person or seizure of the property of the defendant. In support of this contention it cites a paragraph from the opinion of the late Chief Justice Maxwell in Rice v. Day, 34 Neb. 100, 51 N. W. 464, as follows:

“At common law, prior to the statute of Marlbridge (52 Hen. III.), which gave costs to a defendant where the action against him failed, a defendant who had defeated the party bringing the action might bring an action against him for malicious prosecution. The fact that an action was not well founded--had been brought against a party and failed--was sufficient to justify a suit for malicious prosecution, although neither his person nor property had been taken into the custody of the court. After the statute of Marlbridge, above referred to, took effect, the general rule had been that in a civil action, to justify an action for malicious prosecution, there must have been an arrest of the person or a seizure of his property.”

We do not think, however, that this paragraph was intended to commit the court, or even the writer of the opinion, to the general rule therein stated. It does not do so explicitly, and the matter under consideration was an action for the malicious seizure of property upon a writ of attachment, for the decision of which, or, at any rate, for the reaching of the conclusion arrived at, an invocation of the rule was not requisite. We therefore regard the question as an open one in this state. As is said by Chief Justice Corliss, speaking for the supreme court of North Dakota, in Kolka v. Jones, 71 N. W. 558, 66 Am. St. Rep. 615, the decisions upon the question in this country are in hopeless conflict. But inasmuch as the rule is not a part of the common law, strictly so called, but was introduced in England by statute, the statute may properly be said to be the reason for it; and in those states, like this, where the statute, or the principle of it, is not in force, the case may with propriety be said to fall under the operation of the maxim that when the reason for a law fails the law itself ceases to exist. We quote from the opinion in the case last cited: “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, 1 Am. Rep. 316;Lockenour v. Sides, 57 Ind. 364, 26 Am. Rep. 58;Lipscomb v. Shofner (Tenn.) 33 S. W. 818;Pope v. Pollock, 46 Ohio St. 367, 21 N. E. 356, 4 L. R. A. 255, 15 Am. St. Rep. 608; 14 Am. & Eng. Enc. Law, 32. Why this rule should have been...