Smith v. George (1877) · DecisionDepot

Smith v. George

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1877 No. No. 5292Published

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Holding. The court held that the defendant had probable cause to initiate the underlying ejectment action because the plaintiff failed to comply with a prior Probate Court decree requiring him to pay specific expenses.

Issues

Whether an action for malicious prosecution of a civil suit can be maintained absent arrest or property seizure.
Whether the defendant had probable cause to bring the underlying ejectment action.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“An action cannot be maintained for the malicious institution of a civil suit in which no arrest, replevin, injunction, or attachment was issued.”

“upon the facts incontestably appearing in this case, there was probable cause for the bringing of the action in which the defendant here was a plaintiff.”

Synopsis

Contract for Conveyance of Land.—If the owner of land contracts to sell the same to another upon the payment of a fixed sum in installments, and the owner dies before the last installment falls due, and the purchaser petitions the Probate Court for an order requiring his executor to make a conveyance of the land, and the Court decrees such com'eyanee on the payment of the last installment and the expenses of procuring the decree and making the deed, the purchaser must pay such expenses before he can claim a deed.

Judgment.—One who claims the benefit of a judgment rendered in his favor must comply with its terms.

Malicious Pbosecution of Civil Action. — The point mentioned, but not decided, whether an action to recover damages for the malicious prosecution of a civil action, when no arrest of the person of the defendant or seizure of his property has occurred, can be maintained.

An action cannot be maintained for the malicious institution of a civil suit in which no arrest, replevin, injunction, or attachment was issued. (Bay v. Law, 1 Peters C. C. It. 210; Potts v. Imlay, 1 South. E. 331; Samll v. Boherts, Salk. 15; Parlcer v. Langley, Sel. Cases, 161; and Allgor v. Stilwell, 1 Halst. N. J. 166.)

James C. Smith signed and swore to the petition filed in the Probate Court, under which last mentioned decree was made. This fully committed him to and bound him by the adjudication made in that proceeding. (Putnam v. Day, 22 Wall. 60, 64.) The decree of the Probate Court adjudged that Smith should pay “ all expenses attending the application of said petition, and the hearing thereon, and all expenses attending the making and execution of said deed.” Smith was bound by this decree. It was an adjudication of his rights under the agreement of January 15th, 1866. No appeal was taken, and that decree is a finality, unreversible and unattackable in this suit. The rights of Smith to a deed from the executors of Dooley depended upon that decree ; by it, through it, and under it, he was to have the conveyance. How was Smith entitled to his deed before he had [344]complied with the terms of that decree? Were not the executors of Dooley fully justified in suing Smith in ejectment for the land, which he had obtained possession of under the agreement of January 15th, 1866, when he distinctly refused to comply with the decree into which that agreement had been merged ?

Byers & Elliott, for the Respondent, on the point that an action for malicious prosecution would not lie, cited Masten v. Eeyo, 2 Wend. 424; Bisson v. Southard, 10 hi. Y. 239; and Tatum v. Morris, 18 Ala. 302.)

After the case had been submitted the Court made the following order:

One of the points relied upon by the appellant is that the evidence did not justify the verdict, and he has referred us to such portions of the evidence as he deemed necessary in support of that proposition. On the assumption that we cannot review the evidence, as the case is presented by the record, the respondent has wholly omitted to refer us to such portions of the evidence, if any there be, as tend to support the verdict. We cannot perform the duty of counsel in searching through a voluminous record to ascertain whether there be any evidence to uphold the verdict; and it is, therefore,

Ordered, That within twenty days the respondent file an abstract of such portions of the evidence as he may claim justified the verdict, referring to the proper folios in the transcript.

Smith v. George

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