Walbath v. Crary
Decision Date | 14 June 1920 |
Docket Number | No. 13629.,13629. |
Citation | 222 S.W. 895 |
Parties | WALHATH v. CRARY. |
Court | Missouri 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.
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:
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