Walbath v. Crary

Decision Date14 June 1920
Docket NumberNo. 13629.,13629.
Citation222 S.W. 895
PartiesWALHATH v. CRARY.
CourtMissouri Court of Appeals

Action by W. H. Walrath against Beach Crary. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Harry Howard, of Kansas City, for plaintiff in error.

E. A. Scholer, of Kansas City, for defendant in error.

ELLISON, P. J.

This action was instituted to recover damages for malicious prosecution of a civil suit against the plaintiff. The judgment in the trial court was for the plaintiff.

Plaintiff owned real property in Kansas City, Mo., and defendant owned real property in the state of Texas. They exchanged properties and afterwards defendant instituted an action in the state of Texas against plaintiff for rescission, and it is for the institution of that suit that plaintiff has brought this action. Plaintiff was put to the expense of employing counsel and attending court in Texas at the time set for trial, when defendant dismissed the case and plaintiff was discharged. Defendant did not appear or offer defense to this suit, and judgment by default was rendered against him. The trial court heard evidence as to the amount plaintiff had been damaged and rendered final judgment therefor. No appeal was taken, but defendant sued out a writ of error on the record, his complaint being that plaintiff did not allege facts in his petition sufficient to sustain a cause of action, and that is the sole question in the case.

The petition is half made up of a mixture of statement of evidence and argument, going so far in one place as to allege what defendant admitted as to his bad faith in a certain deposition. That part of it purporting to state his case is as follows:

"Plaintiff, for his cause of action against above-named defendant, alleges that at all times hereinafter mentioned defendant was engaged in the business of buying, selling, and trading real estate in Missouri and many other states, and followed said occupation as a business or profession. Plaintiff alleges that some time in February, 1917, he was the owner of a certain 21-apartment flat building located in Kansas City, Mo., and that about said date defendant and plaintiff entered into negotiations for the exchange of properties, defendant offering to trade plaintiff for said flat building 980 acres of land in the Texas panhandle country in Hale county, Tex., such exchange being subject to mutual inspection and investigation; and plaintiff alleges that thereafter defendant inspected the flat, examining its condition, rooms, questioned its tenants, and that thereafter, some time in May, 1917, plaintiff and defendant entered into a contract for the exchange of the properties as hereinbefore mentioned, said transfer to be consummated in August, 1917. "Plaintiff alleges that thereafter, in December, 1917, defendant, Crary, instituted suit in Hale county, Tex., for the rescission of said exchange of properties, cancellation of notes, and other relief, on the ground of misrepresentation alleged to have been made by this plaintiff and his agent as to the number of rooms and toilet improvement in said apartments, as to the rentals and insurance and location of said property in Kansas City. Plaintiff alleges that each ground of rescission set forth in defendant's petition was false and known to be false by defendant when made. * * * Plaintiff alleges that said suit in Hale county, Tex., was brought by defendant without probable cause, in bad faith, and with malice, for the purpose of harrassing and annoying plaintiff, and for the purpose of extorting from plaintiff, through expenses and hazards of litigation, money that defendant was not entitled to. * * * Plaintiff alleges that defendant, with full knowledge of the falseness of each and every allegation in his petition contained, * * * without probable cause, with malice and bad faith and an intention to injure plaintiff and cause him loss of valuable time, expenses of attorneys' fees, had said suit set for trial for September 10, 1918, at Plainview, Hale county, Tex., when he well knew that he would be unable to maintain his suit, and never intended to actually try the same, and compelled plaintiff with counsel to come from Kansas City to Plainview, Tex., and wait there for several days while said suit was being reached, and then on the final calling of the cause for trial voluntarily dismissed the same.

"Plaintiff alleges that all of defenda...

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21 cases
  • In re Rust v. Missouri Dental Board, 37048.
    • United States
    • Missouri Supreme Court
    • August 22, 1941
    ...the commission of an offense and the court was without jurisdiction to revoke appellant's right to practice dentistry. Walrath v. Crary, 222 S.W. 895; Kalman v. Walsh, 355 Ill. 341, 129 N.E. 315; Dyment v. Board of Medical Examiners, 207 Pac. 409. (d) The jurisdiction of the circuit court i......
  • Wilhoit v. City of Springfield
    • United States
    • Missouri Court of Appeals
    • May 3, 1943
    ...S.W. 355; Gibson v. Chicago Great Western Ry. Co., 225 Mo. 473, 125 S.W. 453; Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92; Walrath v. Crary, 222 S.W. 895; 49 C.J. 43; Totman v. Christopher, 237 S.W. 822. [b] A municipal ordinance cannot be attacked by setting forth the ground thereof......
  • Kansas City v. Halvorson
    • United States
    • Missouri Supreme Court
    • December 6, 1943
    ...v. St. L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.W. (2d) 697; Ludwig v. Scott, 334 Mo. 207, 65 S.W. (2d) 1034; Christal v. C......
  • Kansas City v. Halvorson
    • United States
    • Missouri Supreme Court
    • December 6, 1943
    ... ... L. Crematory, 80 S.W.2d 721; ... Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; ... Pier v. Heinrichoffen, 52 Mo. 333; Walrath v ... Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo ... 350; King v. City of Rolla, 130 S.W.2d 697; ... Ludwig v. Scott, 334 Mo. 207, 65 S.W.2d 1034; ... ...
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