Feazle v. Simpson

¶1delivered the opinion of the Court:

¶2Simpson and Wade commenced an action against Feazle in the Circuit Court of Marion county, for maliciously, and without probable cause, making a complaint that they were indebted to John H. Gay, and suing out of said Court an attachment against their goods and chattels. The summons in this cause was issued on the 16th Jan., 1832. The declaration states that the attachment was issued on the 16th Jan., 1832, and that afterwards, at the March term, 1832, of said Circuit Court, the attachment was quashed and dismissed, being found “to be causeless, vexatious, and sued without any colour of law to warrant the same.” On the trial of the cause, the plaintiff below offered in evidence the record in the suit of John H. Gay against the defendants, to prove the making of the complaint, the issuing of the attachment, and the dismissal of the same; to the introduction of which record, the defendant below objected; but the Court overruled the objection, and suffered the record to be given in evidence to the jury. To the reception of which testimony, the defendant below excepted, and the cause is brought into this Court by agreement of the parties.

¶3Although other questions were raised in the Court below, yet it is necessary only to decide whether the record given in evidence to the jury was admissible. On this point the doctrine is well settled, that an action for malicious prosecution cannot be brought before the first suit has been legally determined; and it must be averred, that the former suit terminated in the present plaintiff’s favor, and a legal conclusion of the suit must be shown; and if the suit be not proved to have been determined in the manner alleged, it is a ground of nonsuit.(1) The issuing of a summons is the commencement of a suit; and, consequently, the record received in evidence, was inadmissible, as it would, if it were the record of the proceedings mentioned in the declaration, prove the termination of the former suit to have been long after the commencement of this suit. Such a fact could not contribute to support the action, and consequently the record ought to have been rejected. For this error the judgment must be reversed with costs.

¶4Judgment reversed.