Wright v. Ridgely , 67 W. Va. 319 ( 1910 )

POEEENBARGER, JUDGE :

On a declaration in trespass on the case, drawn as one for malicious prosecution, Thomas S. Wright recovered a judgment for $500.00 against John E. Ridgely in the circuit court of Cabell county, of which the latter complains.

As the declaration fails to aver, in any form, that the defendant maliciously did the acts complained of, the demurrer should have been sustained. Malice and lack of probable cause are the most important elements in such an action. Waldron v. Sperry, 53 W. Va. 116; Harper v. Harper, 49 W. Va. 661; Tavenner v. Morehead, 41 W. Va. 116; Jones v. Finch, 84 Va. 204; Marshall v. Bussard, Gilmer 9; Young v. Gregory, 3 Call. 446; Kirtley v. Deck, 2 Munf. 10; 2 Tucker’s Com. Bk. 3, p. 64.

Is the defect cured by the yerdict? No. Our statute of jeofails, applicable here, a portion of section 3 of chapter 134 of the Code of 1906, says no judgment shall be reversed “for any defect, imperfection, or omission in the pleadings, which could not be regarded on demurrer; or for any other defect,, imperfection or omission, which might have been taken advantage of on a demurrer or answer, but was not so taken advantage of.” The defect is one. that cannot be disregarded, in obedience to the mandate as to the first class of cases. It must be regarded on demurrer. Kirtley v. Deck, 2 Munf. 10; Young v. Gregory, 2 Call. 446; Ellis v. Thilman, 3 Call. 3. But for the demurrer, interposed and overruled, the defect might have to be disregarded, under the terms applicable to the second class, Spangler v. Davy, 15 Grat. 381; but, in view of the demurrer, an expression of opinion as to that would be obiter.

Admission of improper evidence is a subject of complaint in the petition for the writ of error, but, as no instance thereof is specified in either the petition or the brief,-we are excused from any inquiry as to the propriety of rulings, pertaining to-the admission of evidence. Kay v. Glade Creek &c. Co., 47 W. Va. 467.

For the error noted, the judgment will be reversed, the verdict set aside and the case remanded, with leave to the plaintiff' to amend his declaration.

Reversed, and Remanded.