Gillespie v. Hudson , 11 Kan. 163 ( 1873 )

The opinion of the court was delivered by

Bbewek, J.:

Defendant in error brought his action in the district court for malicious prosecution, and recovered a j’udgment against the plaintiffs in error for one hundred dollars. One point seems to us decisive of the case. It is well settled that a defendant in a criminal proceeding who brings his action of damages against the parties instituting the same for malicious prosecution must allege in his petition, and show on the trial that the prosecution has been ended, and he discharged or acquitted. Whithworth v. Hall, 2 Barn. & Adolp., 695; 1 Chitty’s Pl., 679; Cole v. Hawks, 3 Monroe, 208; Spring v. Besore, 12 B. Mon., 551; Wood v. Lacock, 3 Metc., (Ky.,) 192; Bacon v. Towne, 4 Cush., 217; Parker v. Farley, 10 Cush., 279; Bacon v. Waters, 2 Allen, 400; Davis v. Clough, 8 N. H., 157; Gorrill v. Snow, 31 Ind., 215; Wheeler v. Nesbitt, 24 How., (U. S.,) 544. It is even held in Massachusetts that a dismissal and discharge is insufficient to sustain this action, and that there must be a trial and acquittal. See the cases in Cushing’s Reports above cited. The pleadings fail to show any such termination of the prosecution. The petition, after alleging a complaint, a warrant, an arrest, and a continuance, adds this allegation — “that since that time the said defendant William Ketchum nor the said defendant G. W. Gillespie have not further prosecuted said complaint, but have abandoned the same.” The answer admits that at the solicitation of the friends of the plaintiff “the defendants consented not to insist upon the further prosecution of the plaintiff unless the county attorney insisted on the same.” This is all there is in either pleading bearing on this point. As the criminal prosecution is under the control of the county attorney, it may, for aught that appears, be still pending, or even have been prosecuted to the conviction of the defendant. When we turn from the pleadings to the testimony we find the same lack. The record of the justice before whom the criminal proceedings were had was not offered in evidence, nor any attempt made to prove its contents. The following is all the testimony on this question: The defendant in error over objection testified, “I was never tried in that case. Gillespie abandoned it. I did not know it till the day I went to Atchison to the justice’s office for trial. Milt. Dix informed me that Gillespie had abandoned it.” And James Hudson in like manner testified that he “ went with Alexander Hudson to the justice’s office and there learned prosecution was abandoned.” A demurrer to the evidence was interposed, but was overruled. We think the demurrer should have been sustained. Neither pleading nor proof show any right to recover. The case will be remanded with instructions to set aside the judgment in favor of the defendant in error Alexander Hudson, and to enter a judgment in favor of the plaintiffs in error G. W. Gillespie and William Ketchum, for costs.

All the Justices concurring.