Rivers v. Norman

• Decision Date: 02 November 1915
• Docket Number: No. 14090.,14090.
• Citation: 179 S.W. 990
• Parties: RIVERS v. NORMAN.
• Court: Missouri Court of Appeals

179 S.W. 990

RIVERS v. NORMAN.

No. 14090.

St. Louis Court of Appeals. Missouri.

November 2, 1915.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

"Not to be officially published."

Action by Julian H. Rivers against William W. Norman. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Fort, of Dexter, and Hope, Seibert & Reeder, of St. Louis, for appellant. Cleveland A. Newton and Rippey & Kingsland, all of St. Louis, for respondent.

ALLEN, J.

This is an action whereby plaintiff seeks to recover damages, compensatory and punitive, for the alleged malicious institution and prosecution of a civil action against him by the defendant. There was a verdict below for plaintiff for $1,100 actual damages and $1,000 punitive damages, and from a judgment entered upon such verdict the defendant appealed. Appellant, however, has brought here only the record proper, and the appeal involves merely the sufficiency of the petition to sustain the verdict and judgment. The petition is as follows:

"Plaintiff states that on the 17th day of August, 1908, defendant granted, bargained and sold, conveyed and transferred, unto plaintiff, by warranty deed duly executed and delivered, certain lots, tracts, and parcels of land or real estate lying, being, and situate in Stoddard county, Missouri, and described as follows: The southwest quarter (¼) of section thirty-five (35), township twenty-four (24), range twelve (12) east, containing one hundred and sixty (160) acres.

"Plaintiff states: That on the 3d day of January, 1910, defendant with evil and malicious intent and without cause, contriving and intending to injure, cheat, and defraud plaintiff, did institute against plaintiff in the circuit court of Stoddard county, Mo., a certain civil action, the purpose of which was secretly, surreptitiously, and without direct notice to deprive plaintiff of his title and interest in and to said land or real estate, deeded to him by defendant as aforesaid. That a petition was filed in said action in which defendant Norman (who was plaintiff in said action) stated that he was the owner of said land or real estate, but that plaintiff Rivers (who was defendant in said action) was claiming some right, title, or interest in and to said land or real estate, the nature of which was unknown to said defendant Norman, except that it was adverse to him, the said Norman. That in connection with said action said Norman filed with the recorder of deeds of Stoddard county, Mo., affecting said land or real estate, a notice of lis pendens, depriving plaintiff of the power to transfer with good title the said land or real estate until said action should be determined and the title to said land or real estate adjudged to be in the plaintiff herein. That defendant Norman prayed the court to quiet the title to said land or real estate and to adjudge and decree the title to be vested in him, and not in plaintiff, and for such other relief, orders, and decrees against plaintiff herein as to the court should seem meet and just, and that the costs in said action be adjudged against said Rivers, the plaintiff herein. That in instituting and maintaining said action, and filing said notice of lis pendens, defendant evilly, maliciously and wickedly, wrongfully and illegally, abused the process of the court and damaged and wronged this plaintiff.

"Plaintiff states: That the said statements made in said petition were false, and were known so to be by defendant at the time said action was filed, and at the time said notice of lis pendens was filed, and all the time during the pendency of said action. That no ground existed for filing of said action or said notice of lis pendens, and that defendant had no probable cause to believe that any such ground existed, and that said action was instituted and said notice of lis pendens was filed by defendant willfully, wrongfully, and with evil and malicious intent. That no direct notice of the filing of said action, and no notice of the filing of said notice of lis pendens, was served upon plaintiff, but that defendant obtained only constructive service upon plaintiff by publication, although plaintiff was and still is a resident of this city and state.

"Plaintiff states: That he was...