Breathwit v. Rogers

Battle, J. Mrs. Rogers sued William Breathwit for damages. which were alleged to be the result of a malicious prosecution without probable cause. Her action was founded upon the following facts: On the 23d of May, 1893, William Breathwit instituted an action, in the Cleveland circuit court, against Jerry M. Lacy, and sued out an order of attachment, directed to the sheriff of Cleveland county, commanding him to attach and safely keep the property of the defendant, Lacy, and to summon Michael Ravelle and Bettie La-velle as garnishees. In obedience to this order, the sheriff levied upon certain real estate, and summoned Michael and Bettie Jbavelle as garnishees. On the 6th of June, 1893, Mrs. Rogers instituted this action; and on the 14th of the same month filed a complaint in the action against Lacy, and claimed the real estate which was attached as the property of Lacy; and, on the 27th of July following, the real estate was adjudged by the court to be her property; and, on the same day, the garnishees, in answer to interrogatories propounded to them, said that they, or either of them, were not indebted to Lacy in any sum, and had no property of his in his or her possession or control. It does not appear that Breathwit was dissatisfied with their answers, or instituted any further .proceeding against them. Upon this statement of facts, Mrs. Rogers was not entitled to recover in the action instituted by her against Breathwit, for the reason that he had not instituted any malicious prosecution against her. He did not make her a party to the action against Lacy. Not being a party to it, she could not have been affected by it until she made herself a. party to it by claiming the property attached; and she did not make him liable fora malicious prosecution without probable cause by her own conduct. Duncan v. Griswold (Ky.), 18 S. W. Rep. 354; Jaggard, Torts, p. 612. The proceeding against the garnishees amounted to nothing more than an inquiry, as it was not prosecuted further after their answers. The judgment of the circuit court is therefore reversed, and final judgment will be entered in favor of defendant.