Wetmore v. Mellinger
| Decision Date | 09 April 1884 |
| Citation | 18 N.W. 870,64 Iowa 741 |
| Parties | WETMORE v. MELLINGER ET AL |
| Court | Iowa Supreme Court |
Appeal from Des Moines Circuit Court.
ACTION to recover damages sustained by reason of the malicious prosecution of a civil action by the defendants against the plaintiffs. There was a judgment upon a verdict for defendants. Plaintiff appeals. The facts involved in the questions ruled by the court are fully stated in the opinion.
AFFIRMED.
St John & Williams and Newman & Blake, for appellants.
Poor & Baldwin and Hale & Houston, for appellees.
BECK J. REED, J., took no part in the decision of this case. SEEVERS, J., dissenting.
I.
In an opinion heretofore announced in this case, we held that the judgment of the district court ought to be reversed. Upon the petition of defendants, a rehearing was granted, and the cause was again argued and submitted. We have reached a conclusion upon the re-argument different from the decision announced in our former opinion, and we will now proceed to state the grounds upon which it is based.
The petition alleges that defendants brought an action against plaintiff and his wife, charging in the petition that they two conspired and confederated together to defraud defendants, by representing to defendants, under the assumed name of Baker, that they were the owners of certain lands in Poweshiek county, which defendants were induced to purchase of plaintiff and his wife, who, in such assumed name executed to defendants a warranty deed therefor; that, in an action by one Woodward, a deed, purporting to be executed by him to the Bakers, under which they claimed title to the lands, was declared to be void, for the reason that it was forged and fraudulent, and that plaintiff herein and his wife well knew the condition of their title, and represented that they were the owners thereof, for the purpose of cheating defendants, and of obtaining money by false and fraudulent pretenses, and did, in that manner, obtain the sum of $ 3,000 from defendants. It is further alleged that defendants herein served out a writ of attachment in the suit brought by them, which was levied upon real estate owned by plaintiff's wife, and that defendants for a time prosecuted their action, but finally dismissed it at their own costs. Plaintiff, in his petition in this case, alleges that he was not indebted to defendants in any sum at the time their action was brought against him; that he was not guilty of the frauds therein charged, and that the action was commenced and prosecuted by defendants maliciously and without probable cause. The defendants, in their answer, admit the commencement of the suit, the issuing of the attachment, and that it was levied upon real estate owned by plaintiff's wife. There was no evidence showing, or tending to show, that the writ of attachment was levied upon any property owned by plaintiff. The wife of plaintiff does not join in this action.
We think the doctrine is well established by the great preponderance of authority that no action will lie for the institution and prosecution of a civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action.
See 1 Am. Leading Cases, p. 218, note to Munn v. Dupont et al., and cases there cited; Mayer v. Walter, 64 Pa. 283; Kramer v. Stock, 10 Watts 115; Bitz v. Meyer, 11 Vroom 252, s. c., 29 Am. Rep. 233; Eberly v. Rupp, 90 Pa. 259; Gorton v. Brown, 27 Ill. 489; Woodmansie v. Logan, 2 N.J.L. 93, (1 Pen.); Parker's Adm'rs v. Frambes, 2 N.J.L. 156; Potts v. Imlay, 4 N.J.L. 330, (1 South.)
This doctrine is supported by the following considerations: The courts are open and free to all who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of liability resulting from failure in his action, which would keep him from the courts. He ought not, in ordinary cases, to be subject to a suit for bringing an action, and be required to defend against the charge of malice and the want of probable cause. If an action may be maintained against a plaintiff for the malicious prosecution of a suit without probable cause, why should not a right of action accrue against a defendant who defends without probable cause and with malice? The doctrine surely tends to discourage vexatious litigation, rather than to promote it.
It will be observed that the statement of the doctrine we have made extends it no farther than to cases prosecuted in the usual manner, where defendants suffer no special damages or grievance other than is endured by all defendants in suits brought upon like causes of action. If the bringing of the action operates to disturb the peace, to impose care and expense, or even to cast discredit and suspicion upon the defendant, the same results follow all actions of like character, whether they be meritorious, or prosecuted maliciously and without probable cause. They are incidents of litigation. But if an action is so prosecuted as to entail unusual hardship upon the defendant, and subject him to special loss of property or of reputation, he ought to be compensated. So, if his property be seized, or if he be subjected to arrest by an action maliciously prosecuted, the law secures to him a remedy. In the case at bar, the pleadings and evidence show no such special damages. No action could be prosecuted to recover money fraudulently obtained, in which the defendant would not suffer the very things for which plaintiff in this case seeks compensation in damages.
Counsel for plaintiff, in support of their position that the action may be maintained, though no arrest of defendant or seizure of property be had in the proceeding alleged to have been maliciously prosecuted, cite Green v. Cochran, 43 Iowa 544, and Moffatt et al. v. Fisher, 47 Iowa 473. In the first case, the action alleged to be malicious was a proceeding for bastardy, which, under the statute, operated as a lien upon defendant's lands from the commencement. In the other case, the action which was the foundation of plaintiff's claim was forcible entry and detainer, and, before final disposition thereof, the defendant was ousted of possession of the land, whereon was a coal mine. In both instances the property of the respective defendants was reached by the proceedings. The facts of these cases are not within the rule we have stated, and do not support counsel's position.
II. Counsel for plaintiff argue that no objection was made in the court below based upon the ground that the pleadings and evidence in the case, as they appear in the record, fail to show the arrest of plaintiff, or the seizure of his property, or any special injury or grievance, and, therefore, that no question involving these matters can be passed upon by this court, under the familiar rule that we will not review questions that were not presented to and decided by the court below. We will now proceed to the consideration of this position of counsel.
Upon the pleadings and evidence, which we have stated with sufficient particularity, a verdict was had for defendants. Thereupon plaintiff moved to set aside the verdict, and for a new trial, for alleged errors committed by the court in admitting and excluding evidence, and in giving and refusing instructions. The motion was overruled, and judgment was entered upon the verdict. The objections urged by plaintiff to the judgment are based upon exceptions to the rulings upon the admission of evidence, and upon instructions, and the overruling of a motion for a new trial.
Code, § 2690, provides that "the court must, in every stage of an action, disregard any error or defect in the proceeding which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Section 2836 declares that "no exception shall be regarded in the supreme court, unless the ruling has been on a material point, and the effect thereof prejudicial to the rights of the party excepting."
Under these provisions, errors and defects in proceedings are not to be regarded or corrected, either in the court below or in this court, unless prejudice results therefrom to the rights of the party complaining thereof. By this expression, we mean that the party must be deprived by the judgment of a legal right, under which he is entitled to a remedy, bestowing upon him a real benefit. This is the effect of the language of the section first quoted, which declares that errors shall be disregarded which do not affect "the substantial rights" of the party, as well as the language of the other section, which provides that errors "not prejudicial to the rights" of the party shall not be regarded. The rights here referred to are such as pertain to remedies and relief to which the party is entitled by the law, or to defenses, which, under the law, he may make to actions prosecuted against him. If the law secures to a plaintiff no remedy, and this be shown in an action, his substantial rights are not affected by denying him relief, and he suffers no prejudice if he be defeated in his suit. If, therefore, it appears that justice has been done in an action, and that a new trial would not result differently, a judgment will not be disturbed. See cases cited in Miller's Code, notes to § 2836. These rules are to be applied in every stage of an action, both in this court and the court below.
Now, if it appeared to the circuit court, upon the motion to set aside the verdict, that plaintiff, upon the pleadings and evidence in the case, was not entitled to judgment, and that...
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