Niedringhaus v. Zucker

• Decision Date: 09 February 1948
• Docket Number: 40617
• Citation: 208 S.W.2d 211
• Parties: Marion W. Niedringhaus, Plaintiff-Respondent, v. Sam Zucker, Defendant-Appellant
• Court: Missouri Supreme Court

208 S.W.2d 211

Marion W. Niedringhaus, Plaintiff-Respondent, v. Sam Zucker, Defendant-Appellant

No. 40617

Supreme Court of Missouri, Second Division

February 9, 1948

From the Circuit Court of the City of St. Louis, Civil Appeal Judge William K. Koerner

Affirmed

OPINION

Tipton J.

In the circuit court of the city of St. Louis, Missouri, the respondent filed a petition in ejectment against appellant. The appellant filed an answer and a counterclaim. Malicious prosecution alleged in the counterclaim was based upon the petition in ejectment filed in this case. Thereafter the respondent dismissed his petition and filed a motion to dismiss the counterclaim which the court sustained, and a judgment of dismissal was entered. Appellant has duly filed an appeal from this judgment.

The reasons assigned by respondent for dismissal of appellant's counterclaim are as follows:

"1. It fails to state a cause of action.

2. It does not state any claim which the defendant had at the time of filing the counterclaim.

3. The counterclaim does not arise out of any transactions or occurrences which are the subject matter of plaintiff's claim."

There can be no doubt that appellant's counterclaim fails to state a cause of action. It fails to allege the termination of the alleged malicious action in favor of the appellant. Nor could the appellant truthfully allege that the alleged malicious action terminated in his favor because it is the respondent's petition in this action that was pending at the time appellant's answer and counterclaim were filed.

The termination of the alleged malicious action in favor of the plaintiff who sues for damages must be alleged in order to state a cause of action. Weber v. Strobel, 225 S.W 925. See also Mooney v. Kennett, 19 Mo. 551; Freymark v. McKinney Bread Co., 55 Mo.App. 435; 34 Amer.Jur. 771, Sec. 114; Mennen Co. v. Krauss Co., 37 F.Supp. 161.

Section 73 of the new Civil Code provides: "A pleading shall state as a counterclaim any claim, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, * * *." This section can be of no aid to the appellant for the reason that he did not have a claim "at the time of filing the pleading." In other words, at the time the counterclaim was filed no cause of action had accrued for malicious prosecution action. It could not arise as long as respondent's petition was...