Lapique v. Dunnigan

THE COURT. — By the institution of this action the plaintiff sought to recover damages in the sum of one million dollars for an alleged malicious prosecution. Demurrers to the second amended complaint were sustained without leave to amend, and from the several judgments thereafter entered plaintiff prosecuted this appeal. Since perfecting his appeal, the appellant has passed away. As evidence of this fact there has been filed herein a certified copy of a certificate of death, showing that appellant expired on September 24, 1927. The original certificate is on file in the office of the health officer of the city of San Rafael.

As malicious prosecution is an injury to the person, a cause of action based thereon dies with the person. (1 Cal. Jur. 71, sec. 41; 16 Cal. Jur. 743, sec. 12.) It follows, therefore, that the appeal must be, and it is hereby, dismissed.