Williams v. Ainsworth

SiebeoKeb, J. The court directed a dismissal of the complaint for a malicious prosecution, upon the ground that the603 action in wbicb it is alleged an order of injunction was maliciously procured without probable cause bad not been finally terminated. It appears tliat this action is still pending. Appellant contends, however, that the abandonment of this particular restraining order is a sufficient termination of the malicious prosecution of the action, and cites us to the case of Luby v. Bennett, 111 Wis. 613, 87 N. W. 804, and other cases in support of this contention. In the case of Luby v. Bennett it is distinctly stated that the action which was charged to have been maliciously and wrongfully prosecuted and for which damages were claimed had terminated in a judgment in favor of the party claiming damages for its malicious prosecution, and that nothing remained to be done in that suit aside from the necessary steps to enforce the rights of the parties under the final judgment. We have examined the cases urgently pressed to our attention, and find none wherein it is held that a malicious suing out of an injunctional order in the main action could be made the basis of an action for a malicibus prosecution before the final termination of the main suit. The claim that it is immaterial whether or not the main action, wherein such an injunctional order was obtained, is terminated, does not impress us as well founded. The fact whether or not respondent shall establish that she has a good cause of action in the main suit will clearly have a pertinent evidentiary bearing on the charge of her malicious prosecution of the proceeding for an injunction. The adjudications are to the effect that the proceeding complained of as having been wrongfully and maliciously prosecuted must be finally terminated in favor of the party complaining of the malicious prosecution. Respondent’s application for an order to require appellant to show cause why he should not be enjoined from disposing of his property, together with the court’s order restraining him in the meantime, went down because [604] ■the court was not in session at the time set for the hearing. Under snch circumstances, the termination of this proceeding does not constitute a final determination of the legal rights of the parties involved in such application. The application might justly be renewed before final judgment, or the court at the final hearing of the case, upon the evidence adduced, might deem it proper to reinstate the restraining order to protect the rights of the party. Upon the authority of Luby v. Bennett, supra,, and the'cases cited, we find the court applied the correct rule in holding that the action for a malicious prosecution was prematurely brought. Eurther error is assigned upon the ground that under the •complaint and the evidence the case should have been submitted to the jury to assess damages for the injury sustained by appellant resulting from the malicious abuse of the in-junctional proceeding. It is charged that the evidence tended to show a malicious abuse of the proceeding, and that, though regular on its face, it was designed and instituted by respondent with the ulterior purpose of coercing defendant to pay her demand in the action without trial, and by wrongfully .and maliciously subjecting him to injury beyond the consequences ordinarily attending the proper use of such proceeding. An examination of the evidence fails to show that appellant sustained any injury from being restrained from disposing of the property during the eight days it was in force. The testimony on the subject of loss of profits on the sale of the potatoes in no way tends to show that it was the result of this order. The fact appears, as held by the trial court, that appellant could have disposed of his potatoes at prices as high or higher immediately after the order went down as •during the time it was in force. Nor is there proof that appellant could or would have disposed of them while he was so restrained. To show opportunity to mahe the sale is not sufficient; it must appear that the order prevented a sale. The [605] testimony wholly fails to sustain the conclusion that appellant was damaged in tbe respect claimed by the restraining-order. The court properly directed the jury that no grounds-of recovery had been established. By the Court. — Judgment affirmed.