Warner v. Thuringer

168 P. 1173, 69 Colo. 67, 1917 Colo. LEXIS 216

• Court: Supreme Court of Colorado
• Decided: November 5, 1917
• Docket: No. 8708
• Status: Published

Opinion

Mr. Justice Teller

delivered the opinion of the court.

The defendant in error recovered a judgment of one dollar against each of the defendants in an action for malicious prosecution. The parties will be designated herein as they were in the trial court.

The action was begun in a justice court and was there tried to a jury which disagreed. It was then tried to the court on the evidence in the former trial and judgment rendered for the defendants. The case, having been appealed to the county court, was there tried to a jury, a verdict in favor of one of the defendants, Elizabeth Freitag, was directed and returned, and the jury disagreed as to the other defendants. On a second trial the jury returned a verdict against the defendants, — but finding that neither was guilty of fraud, malice or wilful deceit. Judgment was entered on the verdict, and the cause is now here for review.

This litigation grew out of a prosecution of the plaintiff for violating the election laws while acting as a judge of election.

Since malice is an essential element of the cause of action, the finding by the jury that neither defendant was actuated by malice is decisive of the case.

The judgment is accordingly reversed with directions to dismiss the case.

Mr. Justice Hill and Mr. Justice Scott concur.