Skarbinski v. Henry H. Krause Co.
| Decision Date | 13 June 1967 |
| Docket Number | No. 17083.,17083. |
| Citation | 378 F.2d 656 |
| Parties | Jan M. SKARBINSKI, Plaintiff-Appellant, v. The HENRY H. KRAUSE CO., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jan M. Skarbinski, in pro. per.
Sidney N. Weitz, Cleveland, Ohio, Richard B. Ginley, Cleveland, Ohio, on brief, for appellees.
Before PHILLIPS and McCREE, Circuit Judges, and KENT, District Judge.*
Defendant-appellee initiated involuntary bankruptcy proceedings which resulted in plaintiff-appellant being adjudged a bankrupt. Appellant subsequently was granted a discharge.
Thereafter appellees filed a petition before the referee in bankruptcy to vacate the discharge. The referee refused to vacate the discharge and denied the relief sought. Appellees then filed a petition to review. The district court affirmed the order of the referee, leaving the discharge in full force and effect.
Appellant filed the present action for malicious prosecution and conspiracy, charging that appellees maliciously conspired, without probable cause, to vacate his discharge in bankruptcy. He further contends that, because charges of fraud and perjury were made against him, the proceedings to vacate the discharge in practical effect was a criminal proceeding. He sought recovery of $208,229.00.
The district court granted the motion of defendants-appellees for summary judgment.
An action for malicious prosecution originally applied to the prosecution of criminal cases only, but it now extends to the prosecution of civil cases in certain situations.
The Ohio rule is that there is no right of action for the prosecution of a civil suit maliciously and without probable cause, unless there is an arrest of the person or seizure of the property of the defendant therein. The policy is that a contrary rule would deter honest litigants from filing suits to ascertain their rights. 35 O.Jur.2d, Malicious Prosecution, § 10 at 124-9.
The sum and substance of a suit for malicious prosecution is that there must be malice either in institution or in continuing the prosecution. It is not malice in the common acceptance of the term that is the necessary ingredient, but rather malice in the legal sense of a wrongful act intentionally done without just cause. The "malice" sufficient to support such a cause of action may be either express or implied and has been defined as that state of mind under which a person does a wrongful act purposely, without a reasonable or lawful excuse, to the injury of another. 35 O.Jur.2d Malicious Prosecution, § 21-35 at 140-57.
In the petition to vacate the discharge in the present case it was averred that appellees had intended to object to the discharge, but failed to file timely objections because they were led to believe that the trustee would file objections; that appellant had not disclosed in the schedules of his assets an investment of $10,000; and that this sum was transferred with intent to defraud his creditors. In a...
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Gillispie v. City of Miami Twp.
...not necessarily interpreted in the same way. "Suits for malicious prosecution are not favored by Ohio courts." Skarbinski v. Henry H. Krause Co., 378 F.2d 656, 658 (6th Cir. 1967). Regarding the third element, the Ohio Supreme Court held that "[a] proceeding is terminated in favor of the ac......
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Steege v. Johnsson (In re Johnsson)
...proceeding. It is not. A proceeding “to vacate discharge in bankruptcy is a civil, not a criminal proceeding.” Skarbinski v. Henry H. Krause Co., 378 F.2d 656, 657 (6th Cir.1967).18 For example, as discussed later, the Debtor created a new theory, at the Trial, that the Inheritance was a lo......
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Stephenson v. Duriron Company
...lawful obligations, debts and/or duties of Hartford and Kuhns. The most recent case in the Sixth Circuit is Skarbinski v. Henry H. Krause Co., et al., 378 F.2d 656, 657 (6 Cir. 1967). "Sum and substance of suit for malicious prosecution is that there must be malice either in institution or ......
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Bacon v. Patera
...the prosecution for an improper purpose, i.e., a purpose other than bringing an offender to justice. See Skarbinski v. Henry H. Krause Co., 378 F.2d 656, 658 (6th Cir.1967); Prosser on Torts Sec. 119 at 848 (4th ed. 1971). Accordingly, it is a defense to a malicious prosecution claim that o......