Smith v. Parman

• Citation: 172 P. 33,102 Kan. 787
• Decision Date: 06 April 1918
• Docket Number: 21,429
• Parties: CHARLES W. SMITH, Appellant, v. JOHN PARMAN et al., (JOHN W. MORHAIN and ALBERT W. FOX, Appellees)
• Court: United States State Supreme Court of Kansas

172 P. 33

102 Kan. 787

CHARLES W. SMITH, Appellant, v. JOHN PARMAN et al., (JOHN W. MORHAIN and ALBERT W. FOX, Appellees)

No. 21,429

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MALICIOUS PROSECUTION--Action Barred--Statute of Limitations. In an action for malicious prosecution, the first count of the petition is held subject to demurrer because the action was barred by the one-year statute of limitations. (Civ Code, § 17, subdiv. 4.)

2. SAME--Action Barred--Statute of Limitations. The second count of the petition is held barred because an amendment alleging that defendants gave false testimony at the trial which resulted in plaintiff's conviction, brought in a new and different cause of action, and, having been filed more than one year after the cause of action occurred, it was too late.

3. SAME--Conviction in Police Court--Conclusive of Probable Cause. The third count of the petition is held to state no cause of action, because it shows that the prosecution of plaintiff resulted in his conviction; notwithstanding his appeal and acquittal in the district court, the conviction in the police court is conclusive of probable cause.

C. T. Atkinson, of Arkansas City, for the appellant.

John Parman, of Arkansas City, for the appellees.

OPINION

PORTER, J.:

This is an appeal from a judgment sustaining a demurrer to the plaintiff's petition.

The action was one to recover damages for malicious prosecution. A plea in abatement by Parman, alleging that he acted in the matter as city attorney, resulted in a dismissal of the case as to him, which ruling was affirmed when the case was here before. (Smith v. Parman, 101 Kan. 115, 165 P. 663.) The case then proceeded against the other two defendants. The plaintiff filed an amended petition on the 5th day of May, 1916, and the only question involved is whether the demurrer to it was rightly sustained. The petition contains three counts. The first alleges that on September 14, 1914, the defendants maliciously caused the plaintiff's arrest, whereby he was detained at the police headquarters in the city of Arkansas City without probable cause and compelled to pay a fine of $ 5.00. This cause of action was barred by the statute which requires actions for malicious prosecution to be commenced within one year from the time the cause of action shall have accrued. (Civ. Code, § 17, Gen. Stat. 1915, § 6907.) Moreover, it shows a judgment of conviction, without even alleging that an appeal had been taken therefrom, and the judgment was conclusive of the fact that probable cause existed.

The second count makes the averments of the first a part thereof, and alleges that on September 14, 1914, the defendants maliciously and without probable cause filed a complaint before the police judge charging plaintiff with operating an automobile through the streets at a rate of speed in excess of six miles per hour contrary to a city ordinance; that plaintiff was arrested, brought before the police judge and forced to give a bond in order to keep from being placed in jail; that after his conviction he appealed to the district court where, on the 6th day of March, 1915, he was acquitted by a jury.

Thus far the averments follow substantially those of the original petition, although there appears some attempt to lay stress upon the existence of a conspiracy between the defendants, but the original petition charged that the defendants conspired together. The principal amendment consists of a statement that defendants gave false testimony in the police court, upon which the plaintiff was convicted; that having taken an appeal in order to escape the judgment, the defendants gave perjured testimony at the trial in the district court. In the original petition it was alleged in this count that defendant Morhain testified falsely against plaintiff on the trial in the district court; but there was no statement that either of the defendants had testified falsely before the police judge. The plaintiff insists that no new or different cause of action is brought in by the amendment; that it merely amplifies and makes more specific the averments of the original petition, within the rule declared in Railroad Co. v. Sweet, 78 Kan. 243, 96 P. 657, and cases cited in the opinion. The plaintiff was confronted with the proposition that his conviction in the police court established the existence of probable cause, notwithstanding his acquittal in the district court. In Cooley on Torts, 2d ed., page 185, it is said:

"If the defendant is convicted in the first instance, and appeals, and is acquitted in the appellate court, the conviction below is conclusive of probable cause."

To the same effect is ...