Brooks v. Seevers

Granger, C. I. The cause of action under the substituted petition arose, according to its averments, on the seventeenth of June, 1896, and the substituted, petition was filed April 25, 1899, the time between the two events being more than two years. By the provisions of Code, section 3447, such actions are barred if not brought within two years after the causes thereof accrue. The original petition was filed within the two years, and the claim of appellant is that the cause of action stated in the substituted petition is the same as that stated in the original petition, and hence that the action is not barred. The query, then, is, does the substituted petition present a new and distinct Cause of action? Appellant’s theory is that, the action stated in each petition being for malicious prosecution, the cause of action is the same; but we cannot adopt that view of the case. The cause of an action is that which gives rise to it. The act or acts from which a liability accrues and an action for malicious prosecution may be for one of many causes. The identity of a cause of action is not fixed by the general term “malicious prosecution,” but by the averments of facts from which such an ac 483 tion arises, as would, be true in actions for divorce, for negligence, or any other of the many actions known by general legal designations. In the original petition the cause of action is stated to be the conspiring and confederating together of the defendants, Seevers and England, to cause the arrest of the plaintiff, and by and through the conspiracy so formed she was arrested and charged with the crime of attempting to poison- one W. H. Roberts. In the substituted petition the charge is against defendant Seevers alone, and it is that he induced and instigated one "W. II. Roberts to file an information accusing and charging the plaintiff with the crime of threatening to commit a public offense, and charging the plaintiff with attempt to kill one W. H. Roberts by administering poison to him. The original petition places the occurrence on or about the latter part of Hay, 1896, and the substituted petition places it as on the seventeenth day of June, 1896. In the original petition it is charged that plaintiff was arrested, tried, and acquitted, but no time is specified. In the substituted petition the time of the arrest is fixed as on the seventeenth of June, 1896, and the trial and acquittal were on the 23d day of June. The facts upon which recovery is sought in the two petitions are so different that no court would be warranted in holding, as a legal conclusion, that they arose from the same transaction. In the original petition it is charged that the arrest was caused by a conspiracy, and the necessary inference is that the conspirators filed the information charging the crime. In the substituted petition it is charged that Seevers alone induced one W. II. Roberts to file an information charging the crime. The language specifying the' crime charged differs somewhat in the two petitions, and we need\not determine whether the charge is identical or not; as the case may be readily determined from the other facts. There is no inconsistency in holding these transactions to be different. In fact, to hold them the same is to assume what does not appear. Apellant’s argument hardly attempts to show the causes of 484 action to be tbe same on tbe line of tbe facts supporting such a conclusion, but because in each petition malicious prosecution is the general ground of complaint. The district court did not err in sustaining the demurrer, and its judgment is affirmed.