Kaye v. Kean

Judge Simpson

delivered the opinion of the court.

The appellee, Kean, having applied to the general council of the city of Louisville, for a license to keep a tavern, with the privilege of selling spirituous liquors by retail, and his application having been refused, petitioned the circuit court for a writ of mandamus to compel the general council to comply with his request.

The parties were heard in the circuit court, and a judgment rendered, awarding a mandamus, requiring the general council to grant such a license to the petitioner as he had applied for. The general council, of whom the appellant was a member, refused obedience to the writ of mandamus, and for this refusal, he, together with some of the other members of that body, were committed to jail for a contempt, and kept in custody for several days. The judgment of the circuit court was appealed from and reversed by this court, and remanded with directions to dismisss the petition. {Ante, page 11.)

1. A judgment of a court of competentjurisdiction in an action instituted by the plaintiff, is evidence that he had probable cause for believing that he was entitled to the relief he was seeking against the defen’t, and the subsequent reversal of the judgment will not prove that there was not probable cause. It only shows-that the question of responsgardedaTdoubtS'.™ SfC., 12 B. Mon. 555.)

*845Thereupon, this action was brought by the appellant, against the appellee. The plaintiff alleged in his petition that the defendant had maliciously, and without any probable cause, instituted the aforesaid proceedings in the circuit court, and caused him to be committed to jail, and unlawfully imprisoned. He alleged, that as a member of the general council of the city of Louisville, he had a discretion to grant to, or withhold from the defendant, a license to keep a tavern, for the purpose of selling and retailing spirituous liquors therein, and that the circuit court had no power, authority, or jurisdiction to control his discretion; and it was no contempt of law to disobey the writ of mandamus which had been awarded by the circuit court at the instance of the defendant. He also alleged that the city of Louisville appealed from the judgment of the circuit court awarding the mandamus, and that the defendant maliciously and unlawfully, and without any probable cause therefor, opposed the right of the city to prosecutethe appeal, intending and contr iving thereby to prolong plaintiff’s imprisonment in jail.

To this petition the defendant filed a demurrer which was sustained by the court below, and a judgment rendered in bar of the plaintiff’s action. From that judgment he has apppealed to this court.

The proceedings which were had, both in the circuit court, and in this court, on the application for a mandamus, which was made by the defendant, were set forth at length in the plaintiff’s petition. It thus appeared that the judgment of the circuit court on that application was in favor of the defendant. It is well settled that a judgment of a court of competent jurisdiction in favor of the plaintiff in an action, is evidence that he had probable cause for believing he was entitled to the relief he was seeking against the defendant. Here the mandamus was awarded by the circuit court. Can it be-said, that the application for a mandamus was made maliciously, and without any probable cause that it *846would be awarded, when it appears that it was awarded by a judgment of the circuit court? Does not the judgment furnish evidence of the existence °f probable cause? It is true that the judgment of ^ie circuit court was subsequently reversed, but that only proves that the right to the mandamus was a doubtful question, depending upon principles which in all probability were not understood by the applicant, and concerning which different opinions might have been honestly sustained.

existed probable sue9 of'the16 attachment, but tion*1 whetheMt had been rightfully obtained, deterindned0*^ the final judgm’t in the action.— The recovery on for**the ^Injury the party may by being deprivedof the use of his property-its loss or deteriorattachment suit .was maliciously 2. In a suit on an attachment bond,the ques tion is not whether there brought, the defendant might maintain an action for the injury to his credit, feelings, and business; the actions however are distinct.— (Pettit y Owen vs. Mercer, 8 B. Mon. 51.)

*846The doctrine on this subject is, that the judgment of the circuit court in favor of the plaintiff, although it be afterwards reversed, is in cases where the parties have appeared, and have been heard, conclusive evidence of probable cause. And its conclusive effect in this respect can only be avoided by alleging and proving that it was obtained by fraud. This doctrine was recognized as correct in the case of Spring and Stapp vs. Besore, &c. (12 B. Monroe, 555,) and we still deem it to be correct, and approve of it.

On the part of the plaintiff in this action it is contended, that according to this doctrine, the remedy on an attachment bond, executed in pursuance of the 224th section of the Code of Practice, might be lost by the erroneous judgment of the inferior court, and therefore the doctrine cannot be correct. It must be recollected however, that the remedy upon such a bond does not depend upon the existence of probafijg cauge to sue out the attachment, but upon the question whether it has been rightfully or wrongfully obtained. That question is only determined by the final judgment in the action, and is not in any man-“L , . , , . ,. , , , r ner affected by the doctrine applicable to this case. ^he recovery on such a bond is for the injury the party may have sustained by being deprived of the use of his property, or by its loss or deterioration. If the proceeding was malicious, and without probable r ° r cause, an action therefor might be sustained, in which damages could be recovered for injuries to the credit, feelings, and business of the party. The ac*847tions however are entirely distinct, and depend altogether on different principles. The distinction between them is explained and defined in the case of Pettit and Owen vs. Mercer, (8 B. Mon. 51.)

3. The Jefferson circuit court has jurisdiction to award a mandamus against the city council of Louisville,on a proper state of case being presented; and so long as a judgment in a case of mandamus of the circuit court in such case is inforce,it should be obeyed, and a refusal justifies an imprisonment of the party refusing obedience, and no action is maintainablefor such imprisonment. 4. No right of action arises from a party employing coun sel to sustain a judgment which has been rendered in his favor by a court of competent jurisdiction, tho’ it be reversed by the appellate court and thereby is shown to have been erroneous.

The judgment of the circuit court was not void, but merely erroneous. That court had jurisdiction over the subject matter, and might have awarded a mandamus against the general council, under certain circumstances. So long therefore as the judgment remained in force, unsuspend'ed and unreversed, it was the duty of the appellant to have rendered obedience to it. His contumacy subjected him to be proceeded against for a contempt, and as, therefore, there was sufficient cause for his imprisonment, he cannot maintain an action therefor against the appellee.

Having obtained a judgment in the circuit court, which in legal contemplation amounted to conclusive evidence that he had probable cause for believing he was entitled to the writ of mandamus, the appellee had undoubted right to employ counsel to sustain that judgment in this court, when the other party had appealed from it, and was attempting to reverse it. The motion to dismiss the appeal, on the ground that it was improperly prosecuted in the name of the city, and should have been prosecuted by the members of the city council as individuals, and not in their corporate capacity, was made in the usual and ordinary way in which such matters are relied upon to defeat an appeal, and sustain the judgment of the circuit court. There was nothing improper in the motion, and no action can be maintained against the appellee for his conduct in attempting to sustain in this court, a judgment of the court below, which he had a good reason'to believe was perfectly correct.

The appellant, therefore, by the allegations contained in his own petition, showed that he had no cause of action against the appellee.

Wherefore, the judgment is affirmed.