Perry v. Arsham

• Decision Date: 30 July 1956
• Citation: 101 Ohio App. 285,136 N.E.2d 141
• Parties: , 1 O.O.2d 266 Louis A. PERRY, Plaintiff-Appellant, v. Ben ARSHAM et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 285

101 Ohio App. 285

136 N.E.2d 141, 1 O.O.2d 266

Louis A. PERRY, Plaintiff-Appellant, v. Ben ARSHAM et al., Defendants-Appellees.

Court of Appeals of Ohio, Cuyahoga County.

July 30, 1956.

Syllabus by the Court.

1. As a general rule, no suit will lie for the malicious prosecution of a civil action when there has been no arrest of the person or seizure of property.

2. As an exception to the 'strict view,' an action for the malicious prosecution of a civil suit may be maintained whenever, by virtue of an order or writ issued in the 'malicious' suit, the defendant in that suit has been deprived of his personal liberty, or of the possession, use or enjoyment of property of value; likewise, an action may be maintained for maliciously and without probable cause, instituting and prosecuting several actions in forcible entry and detainer against the same defendant and involving the same property. (Pope v. Pollock, 46 O.S. 367.)

3. An action may not be maintained for maliciously prosecuting a single action of forcible entry and detainer, where there has been no arrest of the person or seizure of property.

Louis A. Perry, pro se.

Roth & Pollack, Cleveland, for defendants-appellees.

DOYLE, Judge.

The sole question before this court in this appeal on questions of law from a judgment of the Municipal Court of the city of Cleveland, is the propriety of the court's ruling in the sustaining of a demurrer to the second of two pleadings denominated 'second amended petition' filed therein, and, upon the refusal of the plaintiff to further amend the pleading, the dismissal thereof.

The demurrer alleged that the pleading did not 'state facts constituting a cause of action.'

The second amended petition there under attack sounded in tort, and, for the lack of a better expression was for damages for the claimed malicious prosecution of a civil suit--i. e., an action in forcible entry and detainer in which the plaintiff therein secured a judgment in his favor.

In short, the second 'second amended petition' stated that the plaintiff, Louis A. Perry, lived for many years as a tenant in the apartment building owned by the defendant, Ben Arsham; that 'on or about the 2nd day of September, 1953, Ben Arsham, * * * after being aided and abetted by defendants Sara Sawyer Leighton * * * and her husband, Ellis P. Leighton, who are the janitor and janitress of the aforesaid * * * building * * *, wrongfully, maliciously and without probable cause filed a petition for forcible entry and detainer in this court, 'against the plaintiff herein and his wife; that subsequently the case was tried to a jury, and the jury returned its verdict in favor of this plaintiff; and that the action against his wife was dismissed at the costs of the defendant herein, Arsham.

The plaintiff further pleaded that he was given a lease for the premises for a period of one year, and that, in violation of the terms of the lease, 'the said Ben Arsham served a notice to leave the premises, and in due course filed a petition in forcible entry and detainer' against him and his wife.

In conclusion, the petition charged that 'by reason of the wrongfully, maliciously and without probable cause filing of the petition in this court as aforesaid, it became annoying and harassing to the plaintiff, that he lost a great deal of time for the preparation and trial of the case, and (for a) further reason thereof plaintiff's reputation has been impaired, all to his damages in the sum of five thousand dollars.'

It is not the purpose of this writer to review the various pronouncements on this question of courts in states other than Ohio. Some Ohio cases will be cited. They must be the guide for our conclusion. Cases outside of Ohio are in sharp conflict. See, 34 Am.Jur., Malicious Prosecution, Sec. 10; 54 C.J.S., Malicious Prosecution, § 11 et seq.

'1. As a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property.' Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St. 489, 56 N.E. 198.

This Ohio rule is spoken of as the 'strict view,' and the arguments in its favor are generally stated as follows:

(1) 'Costs' are given as adequate redress; (2) courts should be free and open to all without fear of being sued in return; (3) freely permitting malicious prosecution actions would make litigation interminable; (4) defendant should have no right to a malicious prosecution action, since plaintiff has no action if a defense is malicious and groundless.

The contrary liberal view demands, generally, only that, in addition to provable injury and a favorable termination of the prior suit, the said prior suit be unfounded and maliciously brought.

Ohio, as well as other states which follow the strict rule, has given way to a number of exceptions. For instance, it has been held in Ohio that a suit will lie for malicious prosecution even though in the first suit there may have been a valid cause of action, but in fact no probable cause for an attachment taken out maliciously, and that it is not essential that the suit in attachment should be first terminated. Tomlinson v. Warner, 9 Ohio 103, 104; Fortman v. Rottier, 8 Ohio St. 548.

In the case of Newark Coal Co. v. Upson, 40 Ohio St. 17 appears another exception to the general rule, wherein it is stated:

'The N. C. Co., a corporation, with malice and without probable...