Spring v. Besore

• Decision Date: 26 January 1851
• Citation: 51 Ky. 551
• Parties: Spring & Stepp v. Besore, etc.
• Court: Kentucky Court of Appeals

51 Ky. 551

Spring & Stepp v. Besore, etc.

Court of Appeals of Kentucky.

January 26, 1851

Malicious Suits. Probable Cause.

APPEAL FROM THE FAYETTE CIRCUIT.

Carr & Atwood, and Kinkead & Breckinridge, for appellants

Burnam, for appellees.

OPINION

SIMPSON CHIEF JUSTICE.

Case stated.

SPRING & STEPP were, in the year 1849, engaged in keeping a livery stable in the town of Richmond, and having incurred liabilities to a considerable extent, several of their creditors exhibited bills in chancery in the Madison Circuit Court against them, alleging that they intended to make a fraudulent conveyance or some other fraudulent disposition of their property, for the purpose of preventing their creditors from collecting their debts; on which bills, attachments were sued on and levied upon the property of the defendants.

The defendants answered and denied that they intended to make any fraudulent disposition of their property, or had ever entertained such a design. The suits were consolidated and a good deal of testimony introduced on both sides. Upon final hearing, the Circuit Court sustained the attachments, and the property attached having been sold during the pendency of the suits, distributed the proceeds among the several attaching creditors. To that decree the defendants prosecuted a writ of error, and this Court being of the opinion that the testimony was insufficient to establish the charge of a fraudulent intent, reversed the decree and remanded the cause with directions that the several bills should be dismissed.

After the reversal in this Court, but before its mandate had been entered and carried into effect in the Circuit Court, Spring & Stepp commenced two actions on the case in the Fayette Circuit Court against part of the creditors for having, as alleged in the declarations, maliciously, and without probable cause instituted said suits in chancery, and sued out the attachments therein, whereby their property had been levied upon, and sold at a great sacrifice, and they had sustained considerable loss and injury.

The two cases were consolidated and submitted to the Court, by the consent of parties, to determine; 1. Whether, as the suits were brought, before the mandate of this Court had been entered in the Madison Circuit Court, and the bills dismissed, they could be maintained, or should for that reason be abated? And, 2. Whether the decree in the Circuit Court sustaining the attachments and decreeing relief to the complainants, notwithstanding that it had been reversed, was conclusive, or only prima facie evidence of probable cause for instituting the suits and suing out the attachments? Both questions were decided against the plaintiffs by the Circuit Court.

In addition to the facts already mentioned, it was admitted by the parties, and so entered on the record, that the defendants were actual bona fide creditors of the plaintiff at the time they instituted the suits in chancery and obtained the attachments; and that the Madison Circuit Court had jurisdiction over the subject matter of the suits. The proceedings in the chancery suits were to be considered as part of the agreed facts; but there was no admission that any other proof could be made to establish the want of probable cause, than that which might be deduced from the record of the proceedings in said suits, and the reversal, by this Court, of the decree of the Circuit Court.

1. It is a general principle, that to enable the plaintiff to maintain such an action as this, the suit alleged to have been malicious must have been determined in his favor; and this fact, as well as the manner of its determination, must appear on the face of the declaration. Cole vs Hanks (3 Monroe, 209). This principle is not controverted, but it is contended that the suits had been virtually determined by the reversal of the decree, and the mandate of this Court directed to the Circuit Court to dismiss the bills, and to sustain this proposition, we have been referred to the case of Burt vs. Place (4 Wend., 591), in which it appeared that the suits complained of as malicious, were instituted in a Justice's Court, and the plaintiff there recovered judgments, but the defendant brought appeals on them, and prevailed in the Common Pleas; and it was held by the Supreme Court of the State of New York, that the appeals were further proceedings in the same suits, and the judgments rendered in the Court of Common Pleas were determinations of the suits in favor of the defendants. But there is an evident want of analogy between that case and this. In that, the judgment of the Court of Common Pleas produced a reversal of the judgment of the justice, and was carried into effect by the Court that...