Niedringhaus v. Zucker, No. 40617.
| Court | Missouri Supreme Court |
| Writing for the Court | Tipton |
| Citation | 208 S.W.2d 211 |
| Docket Number | No. 40617. |
| Decision Date | 09 February 1948 |
| Parties | NIEDRINGHAUS v. ZUCKER. |
v.
ZUCKER.
Appeal from St. Louis Circuit Court, Division No. 1; William K. Koerner, Judge.
Ejectment by Marion W. Niedringhaus against Sam Zucker, wherein defendant counterclaimed for malicious prosecution. From a dismissal of the counterclaim after plaintiff dismissed his petition, defendant appeals.
Affirmed.
Lee, Fricke & Lee, of St. Louis, for appellant.
Jones, Hocker, Gladney & Grand and Benjamin Roth, all of St. Louis, for respondent.
TIPTON, Judge.
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, Mo. Sup., 225 S.W. 925. See also Mooney v. Kennett, 19 Mo. 551, 61 Am.Dec. 576; Freymark v. McKinney Bread Co., 55 Mo. App. 435; 34 Amer.Jur. 771, Sec. 114; Mennen Co. v. Krauss Co., D.C., 37 F. Supp. 161.
Section 73 of the new Civil Code, Mo.R.S.A. § 847.73, 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...
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Shulman v. Miskell, No. 79-1293
...Inc., 395 A.2d 369 (Del.Ch.1978); Greer v. State Farm Fire and Gas Co., 139 Ga.App. 74, 227 S.E.2d 881 (1976); Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo.1948); cf., Note, Counter Claim for Malicious Prosecution in the Action Alleged to be Malicious, 58 Yale L.J. 490 11 Inasmuch as that cas......
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Babb v. Superior Court, S.F. 22761
...v. Daus (S.D.N.Y.1955) 17 F.R.D. 319, 323; Alexander v. Petty (1954), 35 Del.Ch. 5, 108 A.2d 575, 577; Niedringhaus v. Zucker (Mo.1948) 208 S.W.2d 211, 212; Manufacturers & Jobbers Finance Corp. v. Lane, Supra, 221 N.C. 189, 19 S.E.2d 849, 852; Prosser on Torts (3d ed. 1964) § 114, p. 873, ......
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J.C. Jones and Co. v. Doughty, No. 15363
...must show affirmatively that the attachment has terminated." Significantly, Freymark was cited with approval in Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo.1948), where plaintiff filed an ejectment action and defendant sought to file a counterclaim for malicious prosecution based upon "the p......
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Wright v. Mullen, No. WD
...defendant counterclaims, therefore, complains of a litigation yet undetermined and so states no cause of action. Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo.1948). A pleading which states no cause of action confers no subject matter jurisdiction a court can adjudicate, and is subject to dism......
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Shulman v. Miskell, No. 79-1293
...Inc., 395 A.2d 369 (Del.Ch.1978); Greer v. State Farm Fire and Gas Co., 139 Ga.App. 74, 227 S.E.2d 881 (1976); Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo.1948); cf., Note, Counter Claim for Malicious Prosecution in the Action Alleged to be Malicious, 58 Yale L.J. 490 11 Inasmuch as that cas......
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Babb v. Superior Court, S.F. 22761
...v. Daus (S.D.N.Y.1955) 17 F.R.D. 319, 323; Alexander v. Petty (1954), 35 Del.Ch. 5, 108 A.2d 575, 577; Niedringhaus v. Zucker (Mo.1948) 208 S.W.2d 211, 212; Manufacturers & Jobbers Finance Corp. v. Lane, Supra, 221 N.C. 189, 19 S.E.2d 849, 852; Prosser on Torts (3d ed. 1964) § 114, p. 873, ......
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J.C. Jones and Co. v. Doughty, No. 15363
...must show affirmatively that the attachment has terminated." Significantly, Freymark was cited with approval in Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo.1948), where plaintiff filed an ejectment action and defendant sought to file a counterclaim for malicious prosecution based upon "the p......
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Wright v. Mullen, No. WD
...defendant counterclaims, therefore, complains of a litigation yet undetermined and so states no cause of action. Niedringhaus v. Zucker, 208 S.W.2d 211 (Mo.1948). A pleading which states no cause of action confers no subject matter jurisdiction a court can adjudicate, and is subject to dism......