On its face, the complaint is somewhat equivocal in that, while it suggests malicious prosecution, it also implies, if it does not express, malicious interference with the rights of contract between plaintiff and third parties. It is upon the latter theory that most of the argument has proceeded.
It is a safe premise that if the stricken averments are of facts with no relevancy as an essential of the cause of action, it was proper to strike them, even though on a trial they, or some of them, might become proper as evidence. I agree that paragraph X, dealing with the "Bank" case, was properly stricken. But, although as a cause of action the bank matter is at an end, we should not now hold, or seem to hold, that it, or some part of it, may not become relevant as evidence if this case is tried. Aside from the main issue of malicious prosecution or tortious interference with contract rights, there may be collateral issues, in the contest of which some or all of the bank matter may become material. That will be for decision by the trial judge when the time comes.
As to the "Aetna" case, it is respectfully submitted that it was error to strike paragraph XII. Briefly, the facts as thereby made to appear (see Aetna L. Ins. Co. v. Cashman,181 Minn. 82, 231 N.W. 403) are that plaintiff had a claim in contract against the Correll bank, and that defendants wrongfully and maliciously prevented its payment by the bank. Plaintiff assigned the claim to another (whether for collection or absolutely does not appear) who procured judgment thereon and then assigned the judgment to plaintiff. The claim has not been paid. Nor, if the complaint is true, will it ever be, payment having been prevented by the wrongful acts of defendants. The bank is hopelessly insolvent, and the possibility of collecting by assessment of stockholders is gone by reason of the running of the statute of limitations. In re Dissolution of First State Bank of Correll, 206 Minn. 250,288 N.W. 709.
It is important that, while plaintiff's contractual demand was merged in judgment, there has been no satisfaction. Equally important *Page 308 is it that plaintiff's present demand is based exclusively on tort and so is different in nature and basic form from his claim against the Correll bank. Therefore, his unpaid judgment against the latter may not be determinative, either as resjudicata or election of remedies. Penn Anthracite Min. Co. v. Clarkson Sec. Co. 205 Minn. 517, 287 N.W. 15. Plaintiff has gotten nothing out of his demand against the Correll bank. So there is no payment thereon to reduce the damages, if any, which he has suffered from the alleged wrongful acts of defendants which are charged to be the wrongful cause of plaintiff's inability to collect.
My submission is that the order should be affirmed insofar as it strikes that portion of paragraph X of the complaint relating to the bank case, but that it should be reversed insofar as it strikes all of paragraph XII relating to the Aetna case.