The opinion of the court was delivered by
Valentine, J.:
This was an action for malicious prosecution, brought by Charles J. Smith against W. W. Marbourg and James H. Lea. The plaintiff Smith recovered a judgment for $75 and costs, and the defendants now seek a reversal thereof by this petition in error. Marbourg and Lea .assign for error, 1st, The admission of the evidence of C. J. .Smith; 2d, The refusal of the defendants’ instructions numbered 1 and 7; 3d, The giving of a certain instruction; 4th, [560]*560The overruling of the defendants’ motion for a new trial.
I. The evidence of C. J. Smith complained of, is not in the record, and therefore we cannot tell whether any error was committed in receiving it or not.
II. The instructions refused read as follows:
“1. If the jury find that the said action of the defendants against plaintiff was ended by the agreement of the parties or their attorneys that the same was settled, then plaintiff is in no event entitled to recover, and the jury will find for de- . fendants.”
“7. The jury are instructed that the record of this court is conclusive on the parties, and it being thereby shown that the said cause is settled, the plaintiff cannot recover in this •action, and the jury will find for defendants.”
The instruction given complained of reads as follows:
“ The record shows the same as if there had been a trial and a verdict in favor of defendants.”
The record above mentioned, and the record mentioned in the seventh instruction refused, and the record which it is claimed tended to prove a settlement of all questions in controversy, and the settlement mentioned in the first instruction refused, reads as follows:
“ W. W Marbourg and James H. Lea, v. C. J. Smith, defendant. j
No. 52. Slander.
“And now come W. W. Guthrie, C. G. Foster, and J. J. Ingalls, attorneys for the said plaintiffs Marbourg and Lea, and show to the court that this case is settled, and dismiss said case at the cost of said Marbourg and Lea, the plaintiffs. And thereupon it is considered and adjudged, by the court here, that said ease be dismissed at the cost of said Marbourg- and Lea, and it is ordered and adjudged that the defendant C. J. Smith have and recover of and from W. W. Marbourg and James H. Lea, partners as Marbourg & Lea, his costs in this behalf expended, and that execution issue therefor; and it is ordered that said O. J. Smith go hence without day.”
This record is a part of the record in an action for slander-brought by Marbourg and Lea against Smith, which action, for 'slander Smith claims was prosecuted maliciously, and without probable cause, and for which Smith now prosecutes, this action for malicious prosecution.
[561]*561Before proceeding to consider the' first and seventh instructions refused, and the instructions given, we must answer an objection of the defendant in error. He claims that the exceptions to the instructions given and refused are not sufficient. As an answer to this objection we would refer to the case of the K. P. Rly. Co. v. Nichols & Kennedy, 9 Kas., 235. "We think the exceptions are sufficient. Said record does not show an adjudication of a settlement. The court does not find nor render judgment that there was any settlement. And the-court could not have done so, even if it had attempted it. There was no such issue before the court- raised by the pleadings, or by a motion, or otherwise. The record does not show that either Smith or his attorneys were present, or had any notice that any such record would be made, of that any such proceeding would be had or attempted. The whole thing appears to have been entirely ex parte, and at the most is only binding on the party making it.. The record does not even show the admission of a settlement on the part of Smith or his attorneys. The record is therefore valid only to show a dismissal of the action, for a plaintiff has a right to dismiss his action; but not to make a settlement without notice, and in the absence of the other party. But suppose it be admitted that the record does show a settlement, does it show a settlement that would bar this action? What were the terms of the settlement? Did not the settlement contemplate that this action would be prosecuted ? It is not every settlement of an action that will bar a suit for the malicious prosecution of such action. (Kinsey v. Wallace, 36 Cal., 462.)
III. There was some parol evidence introduced tending to show that there was an agreement between the counsel for the respective parties that the dismissal of the action for slander should be a bar to an action for malicious prosecution. But there is not a particle of evidence in the record brought to this court tending to show that Smith ever made any such agreement, or that he ever authorized his counsel to make any such agreement, or that he ever assented thereto, or had [562]*562any knowledge thereof, or that he ever in any manner ratified the same. We suppose it will hardly be contended that when counsel are employed to defend in one action they can barter away their client’s rights in another. 'Counsel employed to defend an action have no right to even compromise or settle that action without special authority therefor from their client; much less have they authority to compromise or settle some other action. Such a proceeding does not come within the scope of their employment. (Davidson v. Rozier, 23 Mo., 387; Falker v. Parker, 7 Cranch, 436, 452; Dodd v. Dodds, 9 Penn. St., 315.) Hence said supposed agreement between counsel was a nullity.
IY. In an action for malicious prosecution we suppose that the plaintiff must allege and prove that he has been prosecuted by the defendant; that the prosecution was malicious; that it was instituted without probable cause; that the prosecution has terminated in his favor; and that he has sustained damage. But it is not necessary that there should have been a trial upon the merits of the alleged malicious prosecution. If the action has been dismissed, as in this case, that is sufficient, if the action has not been commenced again. (Fay v. O’Neil, 36 N. Y., 11; Berhauns v. Sandford, 19 Wend., 417; Lear v. Babcock, 2 Johns., 203; Chapman v. Woods, 6 Blackf., 504; Hays v. Blizzard, 30 Ind., 457.) The reasons why an action should be terminated in favor of a defendant before the defendant can commence an action for malicious prosecution would seem to be as follows: First, if the action is still pending the plaintiff therein may show in that actiou that he had probable cause for commencing the suit, by obtaining a judgment therein against the defendant, and he should not be called upon to show such fact in a second action until he has had this opportunity of showing it in the first; second, and if the action has terminated against the defendant then there is already an adjudication against him, showing conclusively that the plaintiff had probable cause for commencing the action. When neither of these reasons apply we suppose the action for malicious prosecution may be maintained, if [563]*563the other necessary facts can be shown.
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The opinion of the court was delivered by
Valentine, J.:
This was an action for malicious prosecution, brought by Charles J. Smith against W. W. Marbourg and James H. Lea. The plaintiff Smith recovered a judgment for $75 and costs, and the defendants now seek a reversal thereof by this petition in error. Marbourg and Lea .assign for error, 1st, The admission of the evidence of C. J. .Smith; 2d, The refusal of the defendants’ instructions numbered 1 and 7; 3d, The giving of a certain instruction; 4th, [560]*560The overruling of the defendants’ motion for a new trial.
I. The evidence of C. J. Smith complained of, is not in the record, and therefore we cannot tell whether any error was committed in receiving it or not.
II. The instructions refused read as follows:
“1. If the jury find that the said action of the defendants against plaintiff was ended by the agreement of the parties or their attorneys that the same was settled, then plaintiff is in no event entitled to recover, and the jury will find for de- . fendants.”
“7. The jury are instructed that the record of this court is conclusive on the parties, and it being thereby shown that the said cause is settled, the plaintiff cannot recover in this •action, and the jury will find for defendants.”
The instruction given complained of reads as follows:
“ The record shows the same as if there had been a trial and a verdict in favor of defendants.”
The record above mentioned, and the record mentioned in the seventh instruction refused, and the record which it is claimed tended to prove a settlement of all questions in controversy, and the settlement mentioned in the first instruction refused, reads as follows:
“ W. W Marbourg and James H. Lea, v. C. J. Smith, defendant. j
No. 52. Slander.
“And now come W. W. Guthrie, C. G. Foster, and J. J. Ingalls, attorneys for the said plaintiffs Marbourg and Lea, and show to the court that this case is settled, and dismiss said case at the cost of said Marbourg and Lea, the plaintiffs. And thereupon it is considered and adjudged, by the court here, that said ease be dismissed at the cost of said Marbourg- and Lea, and it is ordered and adjudged that the defendant C. J. Smith have and recover of and from W. W. Marbourg and James H. Lea, partners as Marbourg & Lea, his costs in this behalf expended, and that execution issue therefor; and it is ordered that said O. J. Smith go hence without day.”
This record is a part of the record in an action for slander-brought by Marbourg and Lea against Smith, which action, for 'slander Smith claims was prosecuted maliciously, and without probable cause, and for which Smith now prosecutes, this action for malicious prosecution.
[561]*561Before proceeding to consider the' first and seventh instructions refused, and the instructions given, we must answer an objection of the defendant in error. He claims that the exceptions to the instructions given and refused are not sufficient. As an answer to this objection we would refer to the case of the K. P. Rly. Co. v. Nichols & Kennedy, 9 Kas., 235. "We think the exceptions are sufficient. Said record does not show an adjudication of a settlement. The court does not find nor render judgment that there was any settlement. And the-court could not have done so, even if it had attempted it. There was no such issue before the court- raised by the pleadings, or by a motion, or otherwise. The record does not show that either Smith or his attorneys were present, or had any notice that any such record would be made, of that any such proceeding would be had or attempted. The whole thing appears to have been entirely ex parte, and at the most is only binding on the party making it.. The record does not even show the admission of a settlement on the part of Smith or his attorneys. The record is therefore valid only to show a dismissal of the action, for a plaintiff has a right to dismiss his action; but not to make a settlement without notice, and in the absence of the other party. But suppose it be admitted that the record does show a settlement, does it show a settlement that would bar this action? What were the terms of the settlement? Did not the settlement contemplate that this action would be prosecuted ? It is not every settlement of an action that will bar a suit for the malicious prosecution of such action. (Kinsey v. Wallace, 36 Cal., 462.)
III. There was some parol evidence introduced tending to show that there was an agreement between the counsel for the respective parties that the dismissal of the action for slander should be a bar to an action for malicious prosecution. But there is not a particle of evidence in the record brought to this court tending to show that Smith ever made any such agreement, or that he ever authorized his counsel to make any such agreement, or that he ever assented thereto, or had [562]*562any knowledge thereof, or that he ever in any manner ratified the same. We suppose it will hardly be contended that when counsel are employed to defend in one action they can barter away their client’s rights in another. 'Counsel employed to defend an action have no right to even compromise or settle that action without special authority therefor from their client; much less have they authority to compromise or settle some other action. Such a proceeding does not come within the scope of their employment. (Davidson v. Rozier, 23 Mo., 387; Falker v. Parker, 7 Cranch, 436, 452; Dodd v. Dodds, 9 Penn. St., 315.) Hence said supposed agreement between counsel was a nullity.
IY. In an action for malicious prosecution we suppose that the plaintiff must allege and prove that he has been prosecuted by the defendant; that the prosecution was malicious; that it was instituted without probable cause; that the prosecution has terminated in his favor; and that he has sustained damage. But it is not necessary that there should have been a trial upon the merits of the alleged malicious prosecution. If the action has been dismissed, as in this case, that is sufficient, if the action has not been commenced again. (Fay v. O’Neil, 36 N. Y., 11; Berhauns v. Sandford, 19 Wend., 417; Lear v. Babcock, 2 Johns., 203; Chapman v. Woods, 6 Blackf., 504; Hays v. Blizzard, 30 Ind., 457.) The reasons why an action should be terminated in favor of a defendant before the defendant can commence an action for malicious prosecution would seem to be as follows: First, if the action is still pending the plaintiff therein may show in that actiou that he had probable cause for commencing the suit, by obtaining a judgment therein against the defendant, and he should not be called upon to show such fact in a second action until he has had this opportunity of showing it in the first; second, and if the action has terminated against the defendant then there is already an adjudication against him, showing conclusively that the plaintiff had probable cause for commencing the action. When neither of these reasons apply we suppose the action for malicious prosecution may be maintained, if [563]*563the other necessary facts can be shown. If the plaintiff has neither shown nor is attempting to show by an action in which he is plaintiff that he had probable cause for commencing his action, then the defendant may show in an action brought by himself that the plaintiff did not have probable cause. But suppose the law were otherwise. Suppose that the party commences an action maliciously, and without probable cause, and then for the purpose of harassing the defendant gives notice that he will take depositions in several remote places in the United States, and thereby puts the defendant to great trouble, inconvenience and expense in attending himself, or employing counsel to attend for the purpose of cross-examining the witnesses, etc.; and then suppose that no such depositions are taken, or were intended to be taken: can the plaintiff relieve himself from liability to an action for malicious prosecution by simply dismissing his action? Will the defendant have no remedy in such a case?
From what we have said we think it will be obvious that the instructions refused were properly refused, because the evidence in this case did not authorize such instructions to be given. And while the instruction complained of given may not be technically correct, yet it was sufficiently correct for the purposes of this action, and certainly did not prejudice the substantial rights of the plaintiffs in error. A dismissal, as well as a verdict and judgment, shows a termination of the suit; and neither a verdict and judgment, nor a dismissal, shows'malice, nor a want of probable cause, or damages.
"V. The motion for a new trial raises no new question. The defendant in error however claims that the motion is not in form sufficient. On the contrary we think it is amply and elaborately sufficient. Instead of merely following the language of the statute, and asking for a new trial on the ground of “ error of law occurring at the trial and excepted to by the defendants,” which is sufficient, (code, § 386, sub. 8; DaLee v. Blackburn, supra, 190,) the defendants specially and very minutely point out the very errors of which they com[564]*564plain, and' for which they ask a new trial. This kind of practice should be encouraged rather than discouraged.
VI. We suppose the only question of law arising upon the last assignment of error is, whether an action for malicious prosecution can be maintained in a case like the one at bar, where neither the person nor property were seized, nor bail nor security required, and the ordinary costs of defending the alleged malicious prosecution have already been' allowed. Our opinion upon this question has already been foreshadowed. We suppose that an action for malicious prosecution can be maintained in any case where a malicious prosecution, without probable cause, has in fact been had and terminated, and the defendant in such prosecution has sustained damage over and above his taxable costs in the case. (Whipple v. Fuller, 11 Conn., 581; Classon v. Staple, 42 Vt., 209; Pangburn v. Ball, 1 Wend., 345.) At common law the defendant in such a case always had a remedy. Originally it was an action for malicious prosecution. Subsequently it was amercement of the plaintiff pro falso elamore. But now and in this state, as amercement is abolished, the defendant must return to-•his original remedy of malicious prosecution. It is an old maxim ■that there can be no legal right without a remedy. ■ And the legal right in such a case has always been recognized.' Indeed, it would be strange if the defendants in the case we have heretofore supposed while discussing the second and third assignments of error should have no remedy.
The judgment of the court below is affirmed.
All the Justices concurring.