JEREMIAH M. HOWER, JR., APPELLANT,
v.
GEORGE W. LEWTON, APPELLEE
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Hower sued Lewton for malicious prosecution after being arrested and held to bail on a criminal charge that was ultimately dismissed when the grand jury failed to indict him. The Florida Supreme Court reversed the trial court's dismissal, holding that a malicious prosecution action can proceed when the underlying prosecution has ended via grand jury rejection of charges and judicial discharge from custody.
The declaration states a sufficient cause of action for malicious prosecution. To maintain such an action, the plaintiff must show: (1) prosecution by the defendant criminally or civilly; (2) that the prosecution has ended; (3) that it was instituted maliciously and without probable cause; and (4) that he sustained damages. The failure of the grand jury to indict and the judicial discharge from custody constitutes a legal end to the prosecution.
“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.”
Establishes the foundational principle that malicious prosecution actions can be based on rejected indictments
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Join FLexlaw to unlock all legal intelligenceHower was arrested and compelled to post bail to answer a criminal indictment. He attended court at great inconvenience and expense. No indictment was…
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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 *333did 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 ground*334less 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.
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Casper Howarth v. City of DeLand, 117 Fla. 692 (Fla. 1934)…nt thereon is required to be a final adjudication on the demurrer, not a decree or judgment against defendants by default as for want of any defense at all. See Cosmopolitan Fire Ins. Co. v. Boatright, 59 Fla. 232, 51 Sou. Rep. 540; Hower v. Lewton, 18 Fla. 328; Marsh v. Atlantic Coast Line R. Co., 76 Fla. 534, 80 Sou. Rep. 307. [*705] The principle of the above cited authorities applies whether the case be one in equity or at law. Judgment should be on the demurrer in every case where the demurring party…
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Lewton v. Hower, 35 Fla. 58 (Fla. 1895)…[*60] Liddon, J.: The case in the court below was a suit for malicious prosecution. The appellee was the plaintiff, and the appellant was the defendant. This case has been before this court before (18 Fla. 328), where the declaration is set out it full. On the trial plaintiff recovered judgment, from which the defendant appealed. The only assignments of error that are argued by the counsel for the appellant relate to instructions given by the judge to th…
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Heard v. Mathis, 344 So. 2d 651 (Fla. 1st DCA 1977)…ctions are instructive to a determination whether Heard’s counterclaim was ill-founded. An indispensable element to an action for malicious prosecution is want of probable cause for the institution of the original proceeding. E. g., Hower v. Lewton, 18 Fla. 328 (1881); Tatum Bros. Real Estate and Inv. Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926). Probable cause in malicious prosecution actions is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to…
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