Schwartz v. Schwartz, 23893.

Citation366 Ill. 247,8 N.E.2d 668
Decision Date02 June 1937
Docket NumberNo. 23893.,23893.
PartiesSCHWARTZ v. SCHWARTZ.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Action by William Schwartz against Emanuel Schwartz. From a judgment [285 Ill.App. 560, 2 N.E.(2d) 751] reversing a judgment for plaintiff, plaintiff appeals.

Affirmed.Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Lake County; Arthur E. Fisher, Judge.

Hall & Hulse, of Waukegan (Albert L. Hall and Marshall Meyer, both of Waukegan, of counsel), for appellant.

Brown, Fox & Blumberg, of Chicago (Charles LeRoy Brown, of Chicago, of counsel), for appellee.

STONE, Justice.

This cause is here in appeal granted to review the judgment of the Appellate Court for the Second district reversing, without remanding, a judgment of the circuit court of Lake county for $50,000 in a suit against appellee for malicious prosecution of a civil suit.

Appellant and appellee are brothers. From 1920 until February 1, 1929, they were in partnership in the mortgage, loan, and insurance business. A dissolution of the partnership took place by agreement on the last-named date, by which appellant purchased appellee's interest in the business for the sum of $336,000, and executed, as part payment thereof, certain promissory notes payable at the First National Bank of Waukegan. These notes contained a power of attorney to confess judgment and are commonly called judgment notes. They differed, however, from the usual judgment note, in that the power to confess judgment became operative only on maturity of the note. These notes were for various sums ranging from $5,000 to $54,000, with due dates from March 1, 1930, to March 1, 1934. About April 1, 1930, a disagreement arose between the appellant and appellee and thereafter, though they resided in the same home with their father, ate at the same table and slept in the same room, they did not speak to one another.

On March 24, 1932, appellee caused judgment to be entered on one of the notes for $15,000 due March 1, 1932, with interest, costs, and attorney's fees. Appellant filed a motion to set aside the judgment, accompanied by a tender of the principal and interest due to March 1, 1932. The motion was sustained and leave given to appellant to plead. Thereafter appellee accepted the tender and dismissed the suit. The suit involved here was then filed by appellant charging that appellee, contriving maliciously to injure him in his good name and credit, and to wrongfully and maliciously cause him unnecessary expense and loss of financial credit in his business and to ruin him financially, had put this note in judgment wrongfully, maliciously, and without probable cause. The complaint alleged damage in the sum of $200,000. After a demurrer to the declaration had been overruled, pleas were filed stating that the action was not without probable cause, and was begun on advice of counsel. The pleas denied that the suit was brought for the purpose of destroying appellant's credit. The cause was tried by a jury and verdict was rendered for $150,000, of which $100,000 was remitted and judgment was entered on the verdict in the sum of $50,000 and costs. The Appellate Court in reversing the judgment without remanding the cause held that an action for malicious prosecution would not lie on the facts of the case. That is the question presented here.

Appellant's testimony was to the effect that on March 1, the due date of the note, he went to the First National Bank of Waukegan where the note was by its terms payable, and was informed that the note was not there; that he then went to the appellee's office and told the latter's secretary that he had a check or draft to pay the note and would take it up. She replied that she did not have the note and that her employer was in California. He thereupon dictated a letter saying, in substance, that he was ready to pay the note any time it was presented to him. It appears that appellee returned from California about the 21st of March. He testified that he asked his secretary if the note had been paid and she said it had not, and while her testimony is not clear and consistent on the question whether she had notified her employer that the appellant had been in with an offer to pay the note, appellee's testimony was that he did not see the letter which his brother had left until after judgment was entered; that the note being three weeks overdue when he returned, he consulted his attorney about the matter and was advised to wait another day or two, which he did. The note past due when judgment was entered. While appellant states that he frequently sought to pay the note at the office of his brother before his return, yet, as he was sleeping in the same room with him and eating at the same table, he must have known of his return, and the record is silent as to any attempt on his part, on the occasion of these personal meetings, to pay the note after appellee returned.

An action for malicious prosecution is one for damages brought by a person against whom a criminal prosecution or a suit has been instituted maliciously and without probable cause. This court has had occasion to say that the law does not look with favor upon such suits. One of the essentials of such a cause of action is that the prior litigation complained of shall have terminated in favor of the defendant therein. A suit for malicious prosecution of a civil suit without probable cause cannot be maintained where the action upon which it is grounded is an ordinary civil action, begun by summons and not accompanied by arrest of the person or seizure of his property, or by special injury not necessarily resulting in any and all suits prosecuted...

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66 cases
  • O'Toole v. Franklin
    • United States
    • Supreme Court of Oregon
    • September 13, 1977
    ......Fidelity Trust, 74 Ga.App. 836, 41 S.E.2d 614 (1947); Schwartz v. Schwartz, 366 Ill. 247, 8 N.E.2d 668, 112 A.L.R. 325 (1937); Wetmore v. Mellinger, 64 Iowa 741, ......
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    ...... Joiner, 82 Ill.2d at 44, 44 Ill.Dec. 260, 411 N.E.2d 229 ; Schwartz v. Schwartz, 366 Ill. 247, 250, 8 N.E.2d 668 (1937); Shedd v. Patterson, 302 Ill. 355, 359-60, ......
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    ...not favored in law." Joiner v. Benton Community Bank , 82 Ill. 2d 40, 44, 44 Ill.Dec. 260, 411 N.E.2d 229 (1980) ; Schwartz v. Schwartz , 366 Ill. 247, 250, 8 N.E.2d 668 (1937) ; Shedd v. Patterson , 302 Ill. 355, 359-60, 134 N.E. 705 (1922). This court has explained:"Public policy favors t......
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