Brooksv.Super Service, Inc.

Supreme Court of Mississippi, Division AOct 3, 1938
183 Miss. 833 (Miss. 1938)
183 Miss. 833183 So. 484

No. 33317.

October 3, 1938.

MALICIOUS PROSECUTION.

The disposal of a prosecution by entry of an order reciting that "a cessat processus" was thereby entered in the case followed by release of the defendant from custody and the dismissal of the charges against him constituted a termination in his favor on which an action for malicious prosecution could be based, the order being for practical purposes equivalent to a formal "nolle prosequi."

ON SUGGESTION OF ERROR. (Division A. Dec. 12, 1938.) [185 So. 202. No. 33317.]

1. MALICIOUS PROSECUTION.

A judgment of conviction has the same evidential value on question of probable cause for instituting prosecution, regardless of whether it was reversed or not.

2. MALICIOUS PROSECUTION.

A judgment of conviction is not conclusive evidence of existence of probable cause for instituting the prosecution.

3. MALICIOUS PROSECUTION.

In malicious prosecution action by plaintiff who had been convicted in justice court, declaration alleging that plaintiff had been charged with unlawful retention of rental storage battery, that defendants at time of institution of prosecution knew that plaintiff had never assumed any obligation for return of any rental battery and that he had never received any battery from them nor authorized any one to receive such battery, did not disclose probable cause for instituting prosecution, since, if allegations were true, conviction had been obtained by evidence known to be false.

APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.

Lotterhos Travis and Vardaman S. Dunn, all of Jackson, for appellant.

The order of cesset processus is a sufficient termination of the criminal prosecution forming the basis of this action within the requirement of the malicious prosecution rule.

Bouvier's Law Dictionary.

We respectfully submit that the very least that can be said of the cesset processus is that it amounts to an indefinite postponement, which is, in effect, a discharge without day and a clear cut abandonment of the prosecution.

It appears that the modern rule is a technical hangover from the early cases requiring a jury acquittal as a condition precedent to the action for malicious prosecution. The principal reasons advanced in these very early cases were as follows:

(1) "That, until the prosecution is determined by the court having jurisdiction thereof, it cannot be known that such court will not sustain it, and in so doing hold, not only that there was probable, but there was sufficient, cause, and, as such ruling would relate back to the institution of the prosecution or proceeding, it would necessarily follow that during the interval there could have been, in contemplation of law, no injury, and hence no cause or right of action."

Carnes v. Atkins Bros. (La. 1909), 48 So. 572.

(2) "That before a party criminally prosecuted shall have a right to maintain an action and recover damages, against one who has acted as complainant in behalf of the commonwealth and ostensibly for the public good, he shall begin by offering a verdict in his favor, by a jury who have considered the cause on its merits."

Parker v. Farley, 10 Cush. (Mass.) 279.

The courts soon discarded the rule of acquittal as a condition precedent to the action, and among the earliest cases repudiating the doctrine it was held that a simple nol pros was sufficient to ground an action of malicious prosecution.

Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35.

It is now generally recognized that a simple nol pros is a sufficient termination.

38 C.J. 444, sec. 96; Odom v. Tally, 160 Miss. 797, 134 So. 163.

The true inquiry, in passing on the question of termination of criminal prosecution, which forms the basis of the present action, is whether the criminal prosecution has been abandoned, and the manner of bandonment, we submit, is wholly immaterial.

This court has in at least four recent cases denounced the practice of using the criminal statutes and setting in motion the machinery of the criminal courts for the purpose of enforcing an alleged civil obligation.

Odom v. Tally, 160 Miss. 797, 134 So. 163; Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743; O'Bryant v. Coleman, 169 Miss. 776, 152 So. 59, 154 So. 259.

The authorities established the proposition that an abandonment of the criminal prosecution is a sufficient termination to ground an action for malicious prosecution.

Burdicks' Law of Torts, pages 310 and 311; Leever v. Hamell, 57 Ind. 423; Lowe v. Wartman, 47 N.J.L. 413, 1 A. 489; Brown v. Rankall, 36 Conn. 56, 4 Am. Rep. 35; Fay v. O'Neill, 36 N.Y. 11; Streylow v. Pettit, 71 N.W. 102; Riet v. Meyer, 146 N.Y. Sup. 75; Waldron v. Sperry, 44 S.E. 283; Wilkerson v. Wilkerson, 74 S.E. 740, 39 L.R.A. (N.S.) 1215; Dickerson v. Atlantic Refining Co., 159 S.E. 446; Abernethy v. Burns, 188 S.E. 97; Winkler v. Lenoir, 143 S.E. 213.

In addition to the effect of the order cesset processus, there is in the case at bar the additional element of abandonment, in that no attempt has been made by appellees or any one else since the entry of the order cesset processus and the discharge of appellant thereunder to again prosecute appellant on the criminal charges.

W.M. Snyder, of Jackson, for appellees.

The amended declaration upon which appellant's action is based alleges no facts upon which any legal cause of action is predicated against the appellee.

Richardson v. Curlee, 158 So. 189, 229 Ala. 505; Topolewski v. Plankinton Packing Co., 143 Wis. 52, 126 N.W. 554, 97 A.L.R. 1022.

There is no evidence in the record other than in the amended declaration of the appellant of the fact that the appellant was brought to trial before justice of the peace and found guilty, and appellees submit that there was nothing in the proceedings prior to and at trial of the appellant as appears in the record, to indicate that the appellant was "fraudulently and maliciously convicted without due process of law."

Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Cooley's Constitutional Limitations, 406; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Haverstein, 72 Miss. 838, 17 So. 602; Allen v. Dicken, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Blucher v. Zonker, 19 Ind. App. 615, 49 N.E. 911; Gurley v. State, 101 Miss. 190, 57 So. 565; Hune v. Inglis, 154 Miss. 481, 122 So. 535; Langley v. State, 170 Miss. 520, 155 So. 682; Dinaway v. State, 157 Miss. 615, 128 So. 770; Miss. Power Co. v. Russell, 152 So. 847, 169 Miss. 36; Ross v. Louisville N.R. Co., 178 Miss. 69, 172 So. 752; State v. Junkin, 159 So. 107; National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474; Flewellen v. Crane, 58 Ala. 627; Pickett v. Pipkin, 64 Ala. 520; Quarles v. Campbell, 72 Ala. 64; Meadows v. Meadows, 73 Ala. 356; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31.

A stay of proceedings is not an order of dismissal such as claimed by appellant as being in his favor.

Bolton v. State, 166 Miss. 290, 146 So. 453; Brown v. Randall, 36 Conn. 5, 4 Am. Rep. 35; 38 C.J. 414, sec. 49 (2), and 444, sec. 96.

In the case at bar, we beg to submit that all issues of fact as contained in the record were tried or could have been tried in the justice of the peace court, which found the appellant guilty, and such conviction has not been reversed.

Burdicks' Law of Torts, pages 313 and 314, sec. 267,

The holding of an accused person by a committing magistrate, as well as the finding of an indictment by a grand jury, is generally accounted evidence of probable cause; and his discharge upon a preliminary examination, is treated by some courts as evidence of a want of probable cause. Abandonment of the prosecution would seem also to raise a prima facie case of lack of probable cause.

Leever v. Hamell, 57 Ind. 423; Lowe v. Wartman, 47 N.J. Law 413, 1 A. 489; Fay v. O'Neill, 36 N.Y. 11; Strehlow v. Pettit, 71 N.W. 102; Riet v. Meyer, 146 N.Y. Supp. 75; Waldron v. Sperry, 44 S.E. 283; Wilkerson v. Wilkerson, 74 S.E. 740, 39 L.R.A. (N.S.) 1215; Hatch v. Cohen, 84 N.C. 602, 37 Am. Rep. 630; Marcus v. Bernstein, 117 N.C. 31, 23 S.E. 38.

We submit, if the court please, that the authorities cited in appellant's brief have no bearing whatsoever on the case at bar for the reason that the defendants in the criminal proceedings cited by appellant were never brought to trial, while in the case at bar we emphasize the appellant herein was tried and convicted in a court of record and general jurisdiction with all the facts as shown in declaration before the court at time of trial.

The universal rule being that where the conviction stands unreversed, the attempt to maintain an action for malicious prosecution because of the prosecution of the proceeding resulting in the conviction is an attempt to impeach the judgment of conviction by showing that it was obtained through fraud or perjury; and with but few exceptions, it is held that this cannot be done in a collateral proceeding. Hence the judgment of conviction is conclusive in favor of the defendant that there was probable cause for the prosecution; therefore it constitutes a defense to the action.

Counsel for appellee has made an exhaustive search of authorities and has failed to find any case where a defendant found guilty in a lower court, later obtaining an order of "nolle prosequi" on appeal could ever sustain an action for malicious prosecution.

Threefoot v. Nichols, 68 Miss. 116; King v. Weaver Pants Corp., 157 Miss. 77, 127 So. 718; Bowman v. Brown, 52 Iowa 437, 3 N.W. 609; Miller v. Runkle, 137 Iowa 155, 114 N.W. 611; Delgado v. Rivera, 57 P.2d 1141, 40 N.M. 217; Goldner Siegel Corp. v. Kraemer Hosiery Co., 274 N.Y.S. 681, 153 Misc. 159; Graham v. Buffalo General Laundries Corp., 184 N.E. 746, 261 N.Y. 165, 275 N YS. 101, 235 App. Div. 246; Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316; Birmingham Bottling Co. v. Morgan, 69 So. 85; Schloss-Sheffield v. Devany, 60 So. 990.

W.M. Snyder, and W.H. Watkins, Jr., both of Jackson, for appellee, on suggestion of error.

The court, in its written opinion in this case, stated erroneously that the only question presented was whether the prosecution complained of had been terminated in the appellant's favor, and the opinion of the court was based solely on that proposition. We call your Honors' attention to the fact that the declaration in this case shows on its face that the appellant, Frank Brooks, had been convicted of the misdemeanors of which he was charged in the justice of the peace court.

It is the appellees' contention here that the declaration shows affirmatively that the appellees did have probable cause to believe that the appellant was guilty. We say this because of the fact that he was convicted of the crime of which he was charged in the justice of the peace court, and in support of this contention we refer your Honors again to the authorities contained in the original brief and will here call your Honors' attention to some additional authorities.

Buhner v. Russe, 175 N.W. 1005; Ricketts v. J.G. McCrory Co., 135 Va. 548, 121 S.E. 916; Conklin v. Whitmore, 132 Ill. App. 574; Smith v. Thomas, 149 N.C. 100, 62 S.E. 722; McElroy v. Catholic Press Co., 254 Ill. 290, 98 N.E. 527; Saunders v. Baldwin, 71 S.E. 620, 34 L.R.A. (N.S.) 958; Fones v. Murdock, 157 P. 148; Wingersky v. E.E. Gray Co., 150 N.E. 164; Dunn v. Gray, 150 N.E. 166; McKinney v. Adams, 50 So. 474, 95 Miss. 832; Robbins v. Waldrop, 140 So. 320, 162 Miss. 803.

We respectfully submit that, even though we concede that the court was correct in its written opinion in this case and that an order of "cessat processus" is final abandonment or termination of the criminal case, we must go one step further than the court went in its original opinion and again examine the declaration to see whether or not it states the cause of action. Examination of the declaration discloses that it alleges a prior conviction and that, even though this prior conviction might have been terminated in appellant's favor on appeal, it is either strong prima facie or conclusive evidence that the appellees had probable cause of his guilt. In neither case did it state a cause of action and in either case the appellees would be entitled to an affirmance of the case. Lotterhos Travis and Vardaman S. Dunn, all of Jackson, for appellant, on suggestion of error.

It is probably true that the numerical weight of authority in this country sustains the position that a conviction by an inferior tribunal is conclusive on the question of probable cause. We respectfully submit, however, that the better reasoned authorities take the position that such conviction by an inferior tribunal is only prima facie evidence of probable cause, and it is believed that under our system of jurisprudence, as determined by Mississippi Code of 1930, section 68, this latter theory is as far as this court can go in harmony with the authorities on the question of probable cause. This is true, particularly in view of the significant fact that the prosecution involved in the case at bar was instituted for the purpose of collecting an alleged civil obligation, contrary to constitutional safe-guards.

Our court has repeatedly held that an appeal from a judgment of a justice of the peace in a criminal proceeding completely vacates such judgment as though it had never been rendered, and the cause is set down anew in the circuit court for trial de novo. The only exception, as provided by the statute, occurs when the accused fails to appear and prosecute his appeal, in which event the conviction of the justice of the peace court would be reinstated and restored. The same rule is held to apply even in cases where the accused pleads guilty to the affidavit before the justice of the peace.

Neblett v. State, 75 Miss. 105, 21 So. 799; Sec. 68, Miss. Code of 1930; Wilson v. State, 113 Miss. 748, 74 So. 657; Washington v. State, 93 Miss. 270, 46 So. 539; Payne v. State, 101 Miss. 588, 58 So. 532.

The State of Alabama has a statute governing appeals from inferior courts which is substantially the same as Mississippi Code of 1930, Section 68. In Kemp v. York (Ala. 1918), 81 So. 195, the court of appeals held that, in view of the statute requiring a trial de novo on the merits, a conviction in an inferior criminal court could not be considered as conclusive evidence of probable cause in a malicious prosecution suit.

The case at bar is distinguishable from the authorities relied on by appellees because of the fact that the criminal prosecution was instituted for the purpose of collecting an alleged civil debt. The great weight of authority is to the effect that, where the chief aim of the prosecution was to accomplish some collateral purpose, as for instance the collection of a debt, this is sufficient to establish a prima facie want of probable cause and to impose on the defendant in an action for malicious prosecution the burden of showing that probable cause actually existed for the prosecution.

Odom v. Talley, 160 Miss. 797, 134 So. 163; Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743; O'Bryant v. Coleman, 169 Miss. 776, 152 So. 59, 154 So. 259; 18 R.C.L. 52, sec. 34; White v. International Text Book Co., 156 Ia. 210, 136 N.W. 121, 42 L.R.A. (N.S.) 346; Wenger v. Phillips, 195 Pa. St. 214, 45 A. 927, 78 A.S.R. 810; MacDonald v. Schroeder, 214 Pa. St. 411, 63 A. 1024, 6 Ann. Cas. 506, 6 L.R.A. (N.S.) 701; Ross v. Hixon, 46 Kan. 550, 26 P. 995, 12 L.R.A. 760, 26 Am. St. Rep. 123; Dickerson v. Atl. Refining Co., 21 N.C. 90, 159 S.E. 446.

It is not necessary to a decision of the case at bar that the court establish in all cases that a conviction by the justice of the peace court is not conclusive evidence of probable cause, but certainly this rule should prevail in the case at bar, where the purpose and intent of the criminal prosecution involved was the collection of an alleged civil obligation.

MacDonald v. Schroeder, 214 Penn. 411, 63 A. 1024, 6 L.R.A. (N.S.) 701, 6 Ann. Cas. 506.


This is an action for malicious prosecution and is an appeal from a judgment sustaining a demurrer to the declaration and dismissing the plaintiff's cause of action. The only question presented is whether the prosecution complained of had terminated in the plaintiff's favor. The prosecution was begun before a justice of the peace on an affidavit made by the defendant's agent, and from a conviction in that court an appeal was taken to the county court. The allegation of the declaration as to the termination of the prosecution is as follows: "and in said (county) court, after a full and complete investigation, the County Attorney for said County, the officer charged by law with the duty and responsibility of prosecuting for and on behalf of the State of Mississippi, and without the consent of the plaintiff and over the plaintiff's objection, refused to try said case, but made a motion for a cessat processus, and the said court duly entered said order of cessat processus, a true and correct copy of said order being hereto attached and marked `Exhibit E,' and the plaintiff was released from custody, and charges against him dismissed, and the plaintiff now charges that said criminal prosecution is now at an end and has terminated in the plaintiff's favor, and the defendants, and each of them, have now abandoned any further prosecution of the plaintiff in said proceedings without the plaintiff's consent or procurement." Exhibit E to the declaration, after styling the case, is in the following language: "It is ordered and adjudged that a cessat processus be, and the same is hereby entered in this case."

While there is some conflict in the authorities relative thereto, it is now generally held that among the several methods by which a criminal proceeding may be terminated in favor of the accused are: (1) "the formal abandonment of the proceeding by the public prosecutor," and (2) "a final order of a trial or appellate court." Rest. Torts (Final Draft No. 3), Sec. 1206; 38 C.J. 18, R.C.L. 23; note to Graves v. Scott, 2 L.R.A. (N.S.), 927. All that is necessary is that the particular proceeding complained of shall have been abandoned and the accused discharged, e.g., where "the proceedings were dismissed at the direction of the county prosecuting attorney." Odum v. Tally, 160 Miss. 797, 134 So. 163, 164. That the accused may continue to be liable to further prosecution on the same charge is of no consequence unless such further prosecution is actually begun. Rest. op. cit., Sec. 1206, comment a.

The order disposing of this prosecution was not entered in full as it should have been, but simply recites that "a cessat processus be, and the same is hereby entered in this case." What the draftsman of the order probably had in mind was a cesset processus, (let execution or proceeding stay) which was the designation of "the formal order for a stay of process or proceedings, when the proceedings in court were conducted in Latin." 1 Bouv. Law. Dict., Rawles Third Revision, 448; Smith v. Bowen, 11 Mod. 231, 88 English Reprint 1008, in which case the form of such an order appears, beginning with the words "cesset processus." The English translation of the Latin words "cessat processus" is "the process (or proceeding) ceases." When applied to the order here under consideration, it will read "it is ordered and adjudged that a proceeding ceases, be and the same is hereby entered in this case." When so read, its meaning can only be that the proceeding (the prosecution of the appellant) has terminated. This is made clear by the allegation of the declaration that the appellant was released from custody and, in effect, discharged. The order, therefore, for all practical purposes, is the equivalent of a formal nolle prosequi, the form for which is set forth in 2 Morris's State Cases 1849.

Reversed and remanded.


ON SUGGESTION OF ERROR.


Smith, C.J., delivered the opinion of the court on suggestion of error.Page 844

As will appear from our former judgment reversing the judgment appealed from reported in 183 So. 484: "This is an action for malicious prosecution and is an appeal from a judgment sustaining a demurrer to the declaration and dismissing the plaintiff's cause of action." We there said that, "The only question presented is whether the prosecution complained of had terminated in the plaintiff's favor," and held that it had so terminated.

The appellee now calls our attention to another question presented by the demurrer which is whether or not the declaration discloses that the appellee had probable cause for instituting the prosecution. If the declaration does disclose probable cause for instituting the prosecution, this action, of course, will not lie. The existence of probable cause, the appellee says, is disclosed in the declaration by its allegation that the appellant was convicted in the court of the justice of the peace, in which court the prosecution was begun.

The declaration does so allege, as will appear from our former opinion, and the judgment of conviction has not been set aside or reversed. What occurred was that the appellant appealed from this conviction to the circuit court, and the prosecution against him was there dismissed. A judgment of conviction whether reversed or not has the same evidential value on the question of probable cause for instituting the prosecution. There are three lines of cases dealing with the effect of a judgment of conviction on the question of probable cause for instituting the prosecution.

(1) It is conclusive evidence thereof. (2) It is conclusive evidence thereof unless it was obtained by fraud, perjury, or other corrupt means. This is the rule of the majority of the cases and is that adopted in 3 Rest. Tort, Section 667. (3) It is only prima facie evidence thereof and may be rebutted by any competent evidence which clearly overcomes the presumption that arises from the fact of the defendant's conviction. The first of this line of cases we unhesitatingly decline to follow, but it will not be necessary for us to here determine with which of the other two lines of cases we will align ourselves for the case presented by the declaration will come within both. If it be said, as to which we express no opinion, that if this court aligns itself with the second of these two lines of decision, a declaration setting forth a conviction in the prosecution complained of must allege that the conviction was procured by fraud, perjury, or other corrupt means, the declaration here so alleges sufficiently to withstand a demurrer.

The defendants to the declaration are the Super Service, Inc., and Neilson, alleged to be its agent and the one by whom the affidavit on which the prosecution was begun was made. It alleges that the prosecution was instituted for the purpose of collecting a debt claimed to be due the Super Service, Inc., by the appellant, and that the affidavit on which it was begun charged the appellant "with having theretofore on or about the ____ day of February, 1937, procured from the said defendant a rental battery which he was bound, or agreed, to return within a period of fourteen days, said criminal prosecution charging this plaintiff with the crime defined under sections 1142 and 1143 of the Code of 1930." The declaration further alleges: "that the said prosecution by said defendant was without foundation in fact or law; that the said defendants well knew at the time of the institution of said criminal prosecution that the plaintiff had never at any time in his whole life contracted or assumed any obligation, either expressed or implied, unto the defendants for the return of any rental battery; that he had never received any rental battery from the said defendants, or either of them, nor had he ever requested any such battery, nor authorized any person on his behalf to receive any such battery from the said defendants." If this last allegation is true, then perjury was committed in the making of the affidavit by which the prosecution complained of was begun, and the judgment of conviction was obtained by evidence which the appellants knew was false.

The suggestion of error will be overruled.