McNamee v. Minke

• Decision Date: 26 June 1878
• Parties: HENRY J. MCNAMEE v. FREDERICK MINKE.
• Court: Maryland Court of Appeals

49 Md. 122

HENRY J. MCNAMEE v. FREDERICK MINKE.

Court of Appeals of Maryland

June 26, 1878

Appeal from the Circuit Court for Howard County.

This suit was instituted by the appellant against the appellee, in the Circuit Court for Allegany County, whence upon the suggestion and affidavit of the plaintiff, it was removed to the Circuit Court for Montgomery County, where it was tried resulting in a verdict for the plaintiff. On motion of the defendant, the court granted a new trial. Subsequently, upon the suggestion and affidavit of the defendant, the cause was removed to the Circuit Court for Howard County, where it was tried. The case is stated in the opinion of this court. A verdict was rendered in favor of the defendant, and judgment was entered thereon for the defendant for costs. The plaintiff appealed.

The cause was argued before BARTOL, C.J., STEWART, ALVEY and ROBINSON, JJ.

A Beall McKaig, for the appellant.

The declaration charges that Minke wrongfully and unjustly contriving to harass, etc., plaintiff, issued his writ of ejectment, wherein defendant falsely and maliciously claimed as against said plaintiff, all of that piece or parcel of ground, etc., etc.; whereas, in truth and fact, the said defendant, at the time of the suing forth of said writ of ejectment, had not any reasonable or probable cause of action against said plaintiff for the whole of said lot, etc.

Then the grievance complained of is particularly set out, viz that Minke claimed as against McNamee the whole of said lot when in truth and fact he was not entitled to the whole. And it further follows that statement up by charging that he (McNamee,) "not only suffered great pain and distress of mind, and was greatly exposed and injured in his credit and circumstances, and was hindered and prevented," etc. The declaration then shows the particular part in which the claim on the part of Minke was improper, in that he claimed the whole, when he was entitled to but a part.

In declarations in actions of this kind, it is but necessary to "state all the material circumstances attending the malicious prosecution, and how it was disposed of." 2 Selwyn's Nisi Prius, 255.

With reference to the allegation regarding the proceedings in the former case, it is merely necessary to state in the declaration, that they were ""legally at an end," and to show how they were ended. Munns v. Dupont, 1 Amer. Lead. Cases, 221.

The declaration sets out how the former case was ended, in words plain and sufficient under our simplified form of pleading, (Code, Art. 75, secs. 2, 3,) viz., "that issue was joined between said plaintiff and said defendant, and a trial thereof was had, and a verdict in favor of said plaintiff, ( i. e., McNamee,) was rendered by the jury, that the said defendant, (i. e., Minke,) should not take the whole of said lot number six, and which said verdict was entered amongst the docket entries of said case, on the 9th of October, 1871, and that up to the date of the institution of this suit, no other or further proceedings in said case have been entered upon by said defendant (i. e., Minke); whereupon and whereby the said suit became and is wholly ended, determined and abandoned," etc. Surely that language sufficiently states all the material circumstances attending the malicious prosecution, and how it was disposed of.

It is not necessary to set out verbatim et literatim the proceedings themselves. All that is required by the Code is to narrate their character in language sufficiently intelligible to show upon the face of the declaration how they were ended, determined and abandoned. Here we claim as the groundwork of our action, that Minke had abandoned the former suit, and in support of that claim offer the procedendo record, papers, proceedings and docket entries in the ejectment case, by the last of which it appears that Minke, after verdict against him, had taken no steps up to the date of the institution of this suit, looking to a continuance of the action--a period of two years and six months. It is but necessary to show that Minke could not recover in the ejectment case, as against McNamee, what he claimed therein, viz., the whole of the lot, and this the declaration upon its face shows. Turner v. Walker, 3 G. & J. 387.

The declaration does show that the former suit was ended by abandonment, for it charges that up to the date of the institution of this suit, no other or further proceedings in said case had been entered upon by said defendant, whereupon and whereby, the said suit became and is wholly ended, determined and abandoned. Pierce v. Street, 3 B. & A. 397; Clark v. Cleveland, 6 Hill, 346.

The fact of the abandonment of the former action is prima facie evidence that the action was without foundation; that in other words, Minke had no probable cause for its institution. The verdict would estop Minke from prosecuting a new action. "But if the defendant plead, and the plaintiff take issue, and a verdict be found for the defendant on the merits, the plaintiff will be estopped from bringing a fresh action, provided the defendant plead the former verdict specially as an estoppel." 1 Chitty Pl. 198; Wood v. Jackson, 8 Wend. 1; Wright v. Butler, 6 Wend. 288.

But aside from that, Minke, by his having abandoned all further prosecution of his case, as is evidenced by his not moving for a new trial, not praying an appeal, etc., was, at the date of the institution of this suit, and is now, unable to prosecute further the former case, and must from "the length of the time which had elapsed"--( Pierce v. Street, 3 B. & A. 397,) "be put to a new one." Clark v. Cleveland, 6 Hill, 346.

The abandonment was by the plaintiff in the ejectment suit, because if he intended to further prosecute it, it was his duty to have availed himself of the remedies the laws of Maryland offered him by an appeal, a motion in arrest of judgment, or a motion for a new trial. Instead of taking advantage of any one of those remedies, he did nothing.

There is no material variance between the allegations of the declaration regarding the verdict, and the proof as offered. The allegations are those of matter of substance, and require only to be substantially proved. 1 Greenl. Ev. sec. 70; Purcell v. Macnamara, 9 East, 157; Stoddart v. Palmer, 3 Barn. & Cress. 2; Philips v. Shaw, 4 Barn. & Ald. 435.

The declaration does not purport to set out the proceedings in the ejectment case. Therefore it was not necessary to prove them as laid, merely to prove the substance of the allegations, and this was done by the offer of testimony. Byne v. Moore, 5 Taunt. 187; Philips v. Shaw, 4 Barn. & Ald. 435.

Charles Marshall and J. H. Gordon, for the appellee.

The declaration is bad--

First.--Because the wrong complained of is not stated with sufficient certainty. The declaration states that the defendant in said ejectment suit, claimed "all of Lot No. 6," whereas in fact he had not any reasonable or probable cause of action for the whole of said lot. The declaration must show the particular part in which the claim was improper. Savil v. Roberts, 1 Salk. 14; 4 Rob. Pr. 670, 671; Reynolds v. Kennedy, 1 Wils. 232.

Second.--Because it states that the verdict was for the plaintiff, "that the defendant should not take the whole of said Lot No. 6," and does not state what part was recovered and what part was not recovered; and said verdict was therefore void for uncertainty and not capable of supporting a judgment. 1 Trials per Pais, 299, 300; Moore v. Read, 1 Blackford, 177; 3 U.S. Dig. 635, sec. 232.

Third.--Because it does not show that the former suit was ended. Morgan v. Hughes, 2 Term, 227, 228, 231; 4 Rob. Pr. 664, 666; Turner v. Walker, 3 G. & J. 377, 387, 389; Skinner v. Gunton, 1 Saund. 228, 229, etc., and notes.

The termination must be shown by the declaration and by the proof also in such a manner as prima facie to show that the action was without foundation. Wilkinson v. Howell, 22 E. C. L. 368; 1 Hilliard on Torts, 494, 495, 497, 498; 2 Add. on Torts, sec. 863; 1 Evans' Harris, 345, 346, and note.

The allegation of the declaration does not show such an ending of the case as is necessary, viz., "that no other or further proceedings were entered upon by defendant after the entry of the verdict." The case was not terminated by the verdict, and it was the duty of the defendant in that case to move for judgment. Dietrich v. Swartz, 41 Md. 200; Boteler v. State, 7 G. & J. 109; Truett v. Legg, 32 Md. 147, 150. The verdict has no effect as an estoppel. Offut v. Offutt, 2 H. & G. 178; Warford v. Colvin, 14 Md. 555; Schindel v. Suman, 13 Md. 310, 314.

The bill of exceptions shows as the ground of exception that the court refused to permit the procedendo record, papers and proceedings and docket entries to be read to the jury.

The court properly rejected said evidence for the reason of the variance between the record as offered and as described in the declaration. 1 Chit. Pl. 228-230, 305, 317, 371, 384, 385, and note p; 1 Starkie Ev. 432-435.

Matters of description must be proved, although not strictly of substance. 1 Starkie Ev. 443; Green v. Bennett, 1 Term, 656; Pope v. Foster, 4 Term, 590; Wales v. Walling, 3 H. & J. 565; Walsh v. Gilmor, 3 H. & J. 383, 384, 409.

The declaration does not show a good cause of action and no good could be accomplished by permitting the evidence to be read to the jury, if it were even admissible in a proper case, and therefore it was properly rejected. State v. Merryman, 7 H. & J. 79; Howard v. Ramsay, 7 H. & J. 113; Leopard v. Canal Co., 1 Gill, 222; Tompson v. State, 4 Gill, 165, 166.

The appellant could not be injured by the rejection of this testimony, because he could not have recovered on his declaration, or on the...