Summary
In Clark v. Cleveland, 6 Hill, 344, the court, speaking through Cowen, J., say: "Nor can it be essentially necessary that there should be an adjudication of the magistrate, or, indeed, any judicial decision upon themerits by any court;... the technical prerequisite is only that the particular prosecution be disposed of in such a manner that it cannot be revived, and the prosecutor must be put to anew one;... the mere discontinuance of a civil suit, in any way, satisfies the rule."
Summary of this case from Hurgren v. Union Mutual Life Ins. Co.Opinion
Department One
APPEAL from a judgment of the Superior Court of Los Angeles County. Lucien Shaw, Judge.
COUNSEL:
Edgerton & Hickcox, for Appellant.
Murphy & Gottschalk, for Respondents.
JUDGES: Garoutte, J. Van Fleet, J., and Harrison, J., concurred.
OPINION
GAROUTTE, Judge
The only question presented by this appeal relates to the sufficiency of the complaint to support the judgment. The action is one of malicious prosecution. It arises from a suit brought by defendant against plaintiffs upon an alleged indebtedness of two thousand and thirty dollars, the issuance of a writ of attachment therein, and a levy upon these plaintiffs' goods to satisfy that demand. This defendant recovered a judgment in that action in the sum of fifteen dollars. A general demurrer raises the question involved.
It is claimed by appellant: 1. The first count of the complaint shows there was probable cause for the action; 2. The second count of the complaint shows there was probable cause for the action; 3. The first count of the complaint does not show that the action has been legally and finally determined in favor of respondents. As to subdivision 1 the complaint alleges: "That in instituting said action, and in securing said writ of attachment, and in having the attachment levied as hereinafter stated, the said Nordholt acted maliciously and without probable cause, and that these plaintiffs were not indebted to him in said amount of two thousand and thirty dollars, or any other amount, excepting the sum of fifteen dollars, which they had tendered to him and had always been ready and willing to pay, which was [53 P. 401] well known to said Nordholt, and the acceptance of which amount he had refused." This allegation of the complaint shows a want of probable cause.
As to subdivision 2, it is claimed that the allegation of the complaint as to the rendition of a judgment for fifteen dollars in favor of plaintiff conclusively shows probable cause in the bringing of the action by Nordholt. This count of the complaint also alleged "that in instituting said action, and procuring said writ of attachment, and in having said attachment levied as hereinafter stated, the said defendant Nordholt acted maliciously, and without probable cause." It follows there is nothing in this contention. "If a person having a good cause of action against another willfully sue for a much greater amount than is due, and attach the property of the other, and put him to charges, he is liable." (Weaver v. Page , 6 Cal. 681.)
As to subdivision 3, it is claimed that the judgment in the prior action should have been pleaded, either by setting out the jurisdictional facts upon which it rested, or by alleging that it was "duly given and made." Section 456 of the Code of Civil Procedure, relating to the manner of pleading judgments, is not applicable to causes litigated and decided in courts of general jurisdiction. (Weller v. Dickinson , 93 Cal. 108; Edwards v. Hellings , 99 Cal. 214; Rowe v. Blake , 112 Cal. 644.)
This is a frivolous appeal.
The judgment is affirmed and fifty dollars damages added as a penalty.