Schudel v. Helbing

THE COURT.

This is an action brought to recover damages for the malicious prosecution of certain civil suits against

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the plaintiff maintained or instigated by the defendant herein. The facts out of which said suits arose were these: In the year 1906 the plaintiff herein rented from the defendant herein certain premises through Louis Helbing, the defendant’s father and agent, the agreement being that a written lease of the premises at a rental of thirty dollars per month for a three-year term was to be drawn up and executed. After the plaintiff herein had gone into possession of said premises and had incurred considerable expense in fitting them up, the defendant herein undertook to repudiate the acts of her father and agent, and raised the- rent to sixty dollars a month, and this not being paid she caused to be instituted four successive attachment suits against plaintiff herein to recover said increased rental, and was engaged in prosecuting these to the great damage, annoyance, and injury of the plaintiff herein, whereupon the latter began a suit in equity to enjoin the further prosecution of said actions, and to compel a specific performance of the agreement for a lease of said premises. In her complaint in said equitable action the plaintiff averred that she was being and would be greatly damaged and injured by the further maintenance of said civil actions, but did not specifically allege or pray for or prove or receive judgment for any such damages in said equity suit. She did, however, recover a judgment in her favor enjoining the defendant herein from further maintaining or prosecuting said civil actions, and for the specific performance of her contract for a lease. After the entry of this judgment in the equity suit plaintiff commenced the present action for malicious prosecution of said four civil suits by the defendant, and also for the malicious filing and prosecution of a cross-demand by the defendant in the equity case involving the gist of said civil suits. The" defendant by her answer in this case specifically denied that the plaintiff had suffered any of her alleged damages by reason of the defendant’s malicious prosecution of her former suits, or by reason of the presentation of her cross-demand in the equity case; but the defendant did not in her answer herein present, either in form or substance, a plea in bar; that is to say, she did not plead that the plaintiff in this action was barred from maintaining it by the fact of the former adjudication. Notwithstanding this it is the main contention of the appellant here that the former suit in equity