Muldoon v. Rickey

• Decision Date: 16 April 1883
• Citation: 103 Pa. 110
• Parties: Muldoon <I>versus</I> Rickey.
• Court: Pennsylvania Supreme Court

103 Pa. 110

Muldoon versus Rickey.

Supreme Court of Pennsylvania.

March 22, 1883.

April 16, 1883.

March 22nd 1883.

Before MERCUR, C. J., GORDON, TRUNKEY, STERRETT and GREEN, JJ. PAXSON, and CLARK, JJ., absent

ERROR to the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1883, No. 212 E. Cooper Shapley and George W. Biddle (William Gorman with them), for the plaintiff in error.—This case is ruled by the recent case of Eberly v. Rupp, 9 Norris 259.

The prosecution of an action of ejectment will not sustain an action for the malicious abuse of civil process: Bacon's Ab. Action on Case (H.) 141; Buller's Nisi Prius, 11; Savil v. Roberts 1 Salk. 14; Waterer v. Freeman, Hobart, 205, 266; Parker v. Langley, Gilbert's Cas. 163; Goslin v. Wilcock, 2 Wils. 305; Cotterell v. Jones, 11 C. B. 715; Purton v. Honnor, 1 Bos. & Pull. 205; Munns v. Dupont, 1 Am. L. C. 261. The only cases where such actions lie, are those in which a capias, attachment or fi. fa. has been vexatiously and improperly issued: Cooley on Torts, 189; Taylor v. Wilson, 1 Coxe 362; Woodmansie v. Logan, 1 Pennington 68; Thomas v. Rouse, 2 Brev. (S. C.) 75; Ray v. Law, 1 Pet. C. C. 207; Potts v. Imlay, 1 Southard 330; Kramer v. Stock, 10 Watts 115; Mayer v. Walter, 14 Smith 283; Watt v. McCarter, 4 Leg. & Ins. Rep. 11; Eberly v. Rupp, 9 Norris 259; Herman v. Brookerhoff, 8 Watts 240; Wengert v. Beashore, 1 Penna. 232; McCullough v. Grishobber, 4 W. & S. 201. Ejectment is a mere possessory action. Entry of the institution of an action of ejectment on the judgment docket does not constitute a lien. It is a mere statutory device to insure notice to persons dealing with the title.

J. M. Moyer, for the defendant in error.—The bringing of an action of ejectment casts a cloud over the title, and when maliciously done should form ground for an action. The effect of the statutory notice and lien is equivalent to a seizure of the defendant's property pending the ejectment, for it destroys its marketability: Canal Co. v. Torrey, 7 Am. L. Reg. 611; Hoyt v. Macon, 2 Col. 114; Sommer v. Wilt, 4 S. & R. 19; Foster v. Sweeny, 14 S. & R. 386; Prough v. Entriken, 1 Jones, 85; Mayer v. Walter, 14 Smith, 283; Closson v. Staples, 42 Vt. 209. It is not denied that the actions of ejectment were issued without cause or probable cause of action, nor that the defendant therein suffered damages by reason of their pendency. Such damage was proximate and not remote. There was ample evidence of malicious intent to go to the jury.

Mr. Justice GORDON delivered the opinion of the court, April 16th 1883.

This is an action on the case, brought by Alexander Rickey, the plaintiff below, against John Muldoon, the defendant, for the recovery of damages resulting from the malicious institution and prosecution, by Muldoon, of certain actions of ejectment, fully set out and described in the plaintiff's narr., and which were finally disposed of by non-suits. An attempt is made in the declaration to charge special damage, but as there was no interference with either the person or property of the defendant, it does not appear that he suffered damage of any kind except such as may be regarded as necessarily incident to all actions of this character. The action of ejectment temporarily clouds the title to the property in controversy, and so may for the time prevent a sale of or mortgage upon it. But a damage of this kind is not more direct than that resulting from the expenses, loss of time, and often loss of credit, arising from the ordinary forms of legal controversy. All are troublesome, expensive and often ruinous, and if for such damage the action of case could be maintained, there would be no end of litigation, for the conclusion of one suit would be but the beginning of another. It has, therefore, been wisely determined that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie. In Potts v. Imlay, 1 South'd 330, Chief Justice KIRKPATRICK alleged that the books for four hundred years back had been searched to find an instance where an action on the case for the malicious prosecution of a civil suit, like the one then trying, had been successfully maintained, and that it was conceded by the counsel for the plaintiff that no such case had been found. He also in this connection cites with approval the case of Parker v. Langley, Gil. Ca. 161, wherein it was said: "An action on the case has not yet succeeded, but only where the plaintiff in the first suit made the course of the court, requiring special bail, a pretense for detaining...