Morgan v. Duffy

Citation30 S.W. 735
PartiesMORGAN v. DUFFY.
Decision Date20 April 1895
CourtSupreme Court of Tennessee

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by W. L. Morgan against John J. Duffy for malicious prosecution. From a judgment for plaintiff, defendant appeals. Affirmed.

L. D. Caldwell and Bell & Horn, for appellant. Wm. Fitzgerald and F. J. Byrne, for appellee.

WILKES, J.

This is an action for malicious prosecution. The case was tried before the judge and a jury, and resulted in a verdict for the plaintiff for $500, and defendant has appealed and assigned errors. Morgan was arrested upon a justice's warrant charging him with having obtained goods under false pretenses. He was placed in jail about 5 o'clock one evening, and released about 10 the next morning. The declaration alleged that the prosecution of plaintiff was finally ended January 3, 1893, and the summons in this case was issued 29th December, 1893. The defendant pleaded the statute of limitations. It was filed February 9, 1894. The cause was set for trial 7th December, 1894. It was then reset for January 4, 1895. When it was called on the latter day defendant asked for continuance on the ground that no issue had been taken upon his plea of the statute of limitations. The court thereupon directed issue to be joined, which was done, and the court refused the continuance. The joinder of issue in such case was matter of form, and it is not shown that defendant was in any way prejudiced by being required to go to trial without continuance. He made no affidavit, nor does it appear that any of his witnesses were absent, or that he was in any way unprepared for trial; nor does such fact appear from the affidavit or motion for new trial. It is said that the verdict of the jury was contrary to the charge of the court and to the evidence, inasmuch as no malice was shown, and defendant acted on the advice of counsel, and had no actual malice. Actual malice, in the sense of ill will or personal hatred, need not be shown. Any improper motive is sufficient to constitute legal malice, and malice will be inferred when the object of the prosecution is to enforce payment of a debt. 14 Am. & Eng. Enc. Law, 23; Ross v. Langworthy, 13 Neb. 492, 14 N. W. 515. It is not claimed that there is any error in the charge of the court on this point. It appears from the proof, and, indeed from the statement of defendant himself, that, while he had no actual malice against plaintiff, he began the prosecution in order to compel the plaintiff to pay him a debt he owed him. Plaintiff, just previous to the time of the prosecution, had been engaged in a small restaurant business on Beale street, city of Memphis, and had bought his goods largely from the defendant. The defendant's contention was that plaintiff represented that certain fixtures and furniture for the restaurant belonged to him; that they had been paid for in cash; and upon this assurance he extended him credit, when in fact the fixtures did not belong to him. Plaintiff contends that he practiced no fraud, but told defendant afterwards, in order to borrow money, that certain goods and furniture and so forth in the restaurant belonged to him, but that he had bought them on a credit, and wanted to borrow money to pay for them; in short, that he told him the entire status of the matter, fully and frankly; that defendant thereupon promised to loan him some money, but, after having a deed of trust prepared to secure it, he declined, whereupon plaintiff made a deed of trust upon the goods and furniture to secure the debts owing for them....

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20 cases
  • Hough v. Rock Island Railway Co., 32855.
    • United States
    • United States State Supreme Court of Missouri
    • 14 Diciembre 1936
  • Hough v. Chicago, R. I. & P. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 14 Diciembre 1936
  • Monypeny v. Kheiv, W2014-00656-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • 1 Abril 2015
    ...practice would have been for State Farm to object promptly and to request a curative instruction from the trial court. Morgan v. Duffy, 30 S.W. 735, 736 (Tenn. 1895); Lee v. Lee, 719 S.W.2d 295, 299 (Tenn. Ct. App.1986). However, even if we allow, arguendo, that State Farm preserved its iss......
  • McRedmond v. Estate of Marianelli, No. M2004-01496-COA-R3-CV (Tenn. App. 9/29/2006), M2004-01496-COA-R3-CV.
    • United States
    • Court of Appeals of Tennessee
    • 29 Septiembre 2006
    ...or conduct of counsel must be made at the trial and a ruling had thereon, or they will not be considered on appeal. See Morgan v. Duffy, 30 S.W. 735 (Tenn. 1895). Because the Individual Defendants' counsel made no objection at the time of the argument, and because he did not request the tri......
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