The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-07-19

Mrs. WILCOX Loses Her
Suit Against
Berrey.

prosecution of a civil suit, a unani-
NOUS opinion of the Supreme Court,
written by Justice Hartwell, decides
as follows:
1.-The exception to the denial of the
motion to dismiss the complaint is sus-
tanned, the verdict is set aside and
Judgment for the defendant non OBJ
stante is ordered, and the cause is
remanded to the Circuit Court for that
purpose
C. w. Ashford appeared for plain
tiff; T. McCants Stewart for defendant.
The verdict for Mrs. Wilcox thus set
aside was peculiar in the addition of
a clause that cleared the defendant
from malicious intent, the verdict read
ing:
I'VE the jury in the above entitled
cause find for the plaintiff and against
the defendant in the sum of $159.60
damages, but We do not think that the
defendant had any malicious intent"
Judge De Bolt, who tried the case,
refused to set aside the verdict on
account of the opinion of the jury re-
gardfng intent, although in other cases
afterward that incident led him to
caution juries against adding COM
ments to their verdicts. In one in
stance he mentioned this case. saying
he might be overruled by the Supreme
Court for giving judgment on such a
verdict Yet the opinion of the Su-
preme Court leaves that question UNI
touched. finding other reasons for up
setting the verdict.
"A brief statement of the case is as
follows: On March IL, 1889, the Hawai-
ian News Co. brought action in the
Honolulu District Court against The
resa O. Wilcox on her promiSsory note
for $50, in payment for a piano, and
obtained judgment in the sum of $102.-
10, but The note was kept by the COM
pany. Mrs. Wilcox afterward made
payments aggregating $45 to the COM
pany on account of the judgment, but
no entry was made on the record
though each payment was endorsed up
on the note. On April II, 1901, defend
ant Berrey, acting as agent for the
Hawaiian News Co., took from plain
tiff's husband, r. w. Wilcox. his de-
mand note for $156.20 in settlement of
the judgment balance and a debt of
Wilcox's own to the Hawaiian News
Co. Berrey obtained a judgment on
this note for s176.60 on May 10, 1901,
in the Honolulu District Court.
On September 10, 1901, Berrey procur-
ed from the Hawaiian News Co. an as
signment to himself of the Judgment
first mentioned, against Mrs. Wilcox
alone, and on December 10, 1901, assign
ed that judgment to one Middleditch.
AS has been seen already this judg-
ment had been paid and satisfied-part-
ly by Mrs. Wilcoxs instalments and
the rest by her husbands note. Still
Middleditch obtained a judgment on
that judgment, in the sum of $135.93,
which on appeal was affirmed by the
Circuit Court and an execution there
on was levied upon Mrs. Wilcox's prop
erty.
Mrs. Wilcox afterward brought suit
for malicious prosecution against Ber-
rey. claiming damages of $500, on the
ground that the defendants acts had
resulted in making the plaintiff liable
to pay the assigned Judgment a Sec
| ond time, and that his acts were done
with malice and without probable
! cause and with intent to Cypress and
prosecute this plaintiff through the
forms of law
! In its opinion the Supreme Court
sustains the defendant in holding thai
a motion to dismiss the complaint
where an appeal was from the sus-
tanning of a demurrer in the District
! Court on identical grounds, amount;
| to a demurrer in the Circuit Court or
the trial of the appeal there.
A second finding is that the com.
plant in this case discloses no cause
of action against the defendant if ht
had brought the suit on judgment him
| self
/ In the third place the court hold:
that IAN action for malicious prose
cution of a civil suit imperatively re.
quires termination of the suit in IA
| vor of the defendant This is on the
| principle that there must be an enc
| to litigation" which might never bt
| if defendant losing a case could turf
round and sue the plaintiff. for ma,
licious prosecution. In conclusion it i.
held:
That this was neither an action fol-
malicious prosecution of a civil suit
the suit having terminated in favor O.
its plaintiff; nor an action for mali.
cious abuse of process, there havine
been no unlawful or unauthorized us,
of process; and that the complaint set.
forth no actionable wrong
The following passage from the
body of the decision tacitly suggest:
that Mrs. Wilcox was wronged in tn,
business, if her case was truly stated
while intimating that she has not tax
en- the proper course to obtain redress
| Upon the averments in this com
plant this plaintiff had a perfectly
good defense in Law, if it was true il
fact, to the suit which the defendan