The Hawaiian gazette., 1904-07-19
CELEBRATED
CASE ENDS
Mrs. WILCOX Loses Her
Suit Against
Berrey.

Q. II. Berrey, damages for malicious
prosecution of a civil suit, a unani-
nous opinion of the Supreme Court,
written by Justice Hartwell, decides
as follows:
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
remanded to the Circuit Court for that
purpose"
c. w. Ashford appeared for plain
tiff; I. McCants Stewart for defen liant.
The verdict for Mrs. Wilcox thus set
aside was peculiar in the addition of
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 $159.6
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
tCouiil VI lilt VI lIlt jury re-
garding 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 u
verdict. Yet the opinion of the Su-
preme Court leaves that question I'M
touched, finding other reasons for up
setting the verdict
A brief statement of the case Is as
follows: On March II, 1882 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 ~, 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
WilcoXs own to the Hawaiian News
Co. Berrey obtained a Judgment on
this note for s17660 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. Wilcox's instruments and
the rest by her husbands note. Still
Middleditch obtained Judgment on
that judgment, in the sum of S135.93, |
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 that
a motion TO dismiss the complaint
where an appeal was from the sus-
tanning of q demurrer in the District |
Court on identical grounds, amounts
to demurrer in the Circuit Court on
the trial of the appeal there
A second finding is that the COM
plant in this case dscloses no cause
of action against the defendant If he
had brought the suit on judgment him
self
In the third place the court holds
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 end
to litigation" which might never be
If a defendant losing case could turn
round and sue the plaintiff for ma
licious prosecution. In conclusion 1t is
held
THAT this was neither an action for
prosecution of a civil suit
the suit having terminated In favor of
10 LOT mali |
cious abuse of process, there having
been no unlawful or unauthorized use
Of process; and that the complaint sets
forth no actonable wrong"
The following passage from the
body OF the decision tacitly suggests
that Mrs, Wilcox was wronged in the
business, II her case was truly stated.
while intimating that she has not TAX
IN the proper course TO obtain redress;
Upon the averments In this COM
plant this plaintiff had a perfectly
good defense IN law, II u was true In {
fact, 90 the suit which the defendant !
hloushI aealnsl hsr A purchaser ~
A iudsmepl which hAs hecn paid. a. !
Ihepsh without no,lee ~ lhe Payment,
IN npi immune from the defense oi
pafnypl ~ h nol lke bona ma
pNi, hnfNr fpf NaluN 0F a pprehA7er
MI nfFNilallU INlfT uNi overdue TINS