Sailesbury v. Creswell

Hardin, J.: The plaintiff is not in a situation to maintain this action founded upon the idea of a malicious prosecution. 1. The litigation before the justice was not terminated in favor of the plaintiff here. 2. The recovery of the judgment before the justice which remains unreversed, and in full force, is evidence of probable cause. The learned counsel for the plaintiff cites Burt v. Place (4 Wend., 591). In that case the litigation had been terminated by an appeal and reversal, which was held a continuation of the suits in favor of the plaintiff. Again, in that case the defendant had caused the arrest of the party with the design and for the purpose of preventing his appearance before the justice to defend the actions. Not so in this case. The plaintiff here deliberately and negligently omitted to appear before the justice and defend. In Palmer v. Avery (41 Barb., 290), cited by plaintiff’s counsel, the court held that the action could not be maintained, because the litigation had not been terminated in favor of the plaintiff. Foster, J., concurred with Bacon, J., upon that ground. This view is recognized by Mitchell, J., in Miller v. Deere (2 Abb., 1), where he says, at page 6 : “If his former testimony can now be disproved, it could and should have been disproved- in the first suit, and the plaintiff should have no relief for his neglect to make such proof, unless he was prevented as in Burt v. Place by some other wrongful act of the present defendant.” Peckham, J., said in Binck v. Wood (43 Barb., 321): “ The law cannot uphold the trust and faith that allows a man to lie by, as plaintiff here did in the first suit, and rest upon the belief that the plaintiff there would not do what in the summons or [464] complaint he had expressly notified this plaintiff he would do.” * * * “ Such doctrine puts an end to the effect which the wisdom of ages has given to judgments.” (Id., see White v. Merritt, 7 N. Y., 352.) The plaintiff cites Brown v. McIntyre (43 Barb., 344), to uphold this action. That does not favor a recovery here.1 There the plaintiff recovered for a malicious arrest in Canada, where ho had been held to bail in $2,000 more than the amount of his debt, and such fact had been found in the Canada suit, which, as to the $2,000, had terminated in his favor. Nor does the case of Brown v. Feeter (7 Wend., 301), aid the plaintiff. There the judgment had been paid and the party wrongfully issued and caused to be executed an execution, and was held liable for the wrong perpetrated by means of the execution. Here the judgment v, as rendered, remained wholly unpaid, and was the foundation for an execution to enforce it. The payment of the judgment in Brown v. Feeter (supra), extinguished it. (Dexter v. Broat, 16 Barb., 337.) The plaintiff here was negligent. 1. In not appearing before the justice. 2. Not inquiring for the judgment. 3. Not asking to have the judgment opened. 4. Not appealing either upon the merits or upon affidavit showing his excuse for not appearing before the justice. (Code, § 366.) Such negligence deprives him of the right to question the judgment in Justice’s Court, and prevents him from overhauling it by means of this action. (Ross v. Woods, 15 N. Y. S. C., 185; Smith v. Nelson, 62 N. Y., 287; White v. Merritt, 7 id., 352; Verplanck v. Van Buren, 18 N. Y. S. C., 328; Gates v. Preston, 41 N. Y., 113; 2 Addison on Torts, 800.) The nonsuit was properly granted at the Circuit, and the motion for a new trial should be denied and judgment directed for the defendant, with costs. Talcott, P. J., and Smith, J., concurred. Motion for new trial denied and judgment for the defendant;