Hower v. Lewton , 18 Fla. 328 ( 1881 )

The Chief-Justice

delivered the opinion of the court.

Appellant sued Lewton for falsely, maliciously and without probable cause, causing him to be arrested and held to bail upon a criminal charge, that he was thereby compelled to give bail to attend court to answer to an indictment, and did so attend at great inconvenience and expense, &c., and that no indictment was found against him, and the Judge of the court therefore discharged him from said arrest and custody, wherefore he claims damages.

The defendant (appellee) demurred to the declaration upon the ground that the declaration did not state a cause of action, and was insufficient in law to maintain this action.

The court sustained the demurrer, anJ on the same day gave judgment that “ the cause be dismissed for want of declaration.” Plaintiff'appealed, and assigns for error (1) that the court sustained the demurrer, and.(2) in dismissing the cause for want of a declaration.

There was clearly error in dismissing the suit for want of a declaration. There was no question of the jurisdiction of the court. If the defendant was entitled to any judgment it was a final judgment upon the ruling of the court sustaining the demurrer (the plaintiff not amending), and not a judgment of dismissal for want of a declaration, because there was a declaration on file and of record. Eor this cause the judgment- must be reversed.

The parties have submitted the whole case, as well upon the demurrer and the railing of the court thereon, as upon the judgment of dismissal.

“An action on the ease for a malicious prosecution may be founded upon an indictment whereon no acquittal can be had, as if it is rejected by .the grand jury, or he coram non judice, or be insufficiently drawn.” 3 Bl. Comm., 127.

To maintain this action the plaintiff must show that he has been prosecuted by the defendant criminally or in a civil suit; that the prosecution is at an end ; that it was instituted maliciously and without probable cause, and that he has thereby sustained damage. It is not necessary that the whole proceedings be utterly groundless, for if groundless charges are maliciously and without probable cause coupled with others which are well founded, they are not on that account the less injurious, and therefore constitute a valid cause of action. 2 Greenleaf Ev., 8th Ed., §449.

It must appear that the prosecution is at an end. If the party has been arrested and bound over on a criminal charge, but the grand jury did not find a bill against him, proof of this fact and that he has been discharged by the court is sufficient. 2 Greenl. Ev., §452, and authorities cited. This is the doctrine of the American authorities. 18 Ind., 321; 30 Ind., 457; 44 Vt., 125; 36 Conn., 56; 6 Gray, 498, &c.

In O’Brien vs. Barry, 106 Mass., cited by defendant’s counsel, the court held simply that the action for malicious prosecution could not be maintained while such prosecution (a replevin suit) was pending before the court. Cardival vs. Smith, 109 Mass., 158, also cited by defendant’s counsel, gives this as the law in criminal cases : if the accused, after being arrested, is discharged by the grand jury finding no indictment, that shows a legal end to the prosecution ; citing numerous English and American decisions.

The failure of the grand jury to find an indictment against the plaintiff, and the discharge of the accused by the Judge from custody and his sureties from their obligation upon the bail-bond, was an end to the prosecution complained of. The declaration was sufficient to maintain the action, and the demurrer should be overruled with leave to the defendant to plead.

The judgment of the Circuit Court is reversed, and the judgment of that court sustaining the demurrer must be set aside and judgment entered overruling the demurrer, with leave to defendant to plead over.