October 5, 2012

William Barger v. Milton Cook, Rockcastle, 1877

William Barger v. Milton Cook.

COURT OF APPEALS OF KENTUCKY

9 Ky. Op. 584; 1877 Ky. LEXIS 346

October 6, 1877, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM ROCKCASTLE CIRCUIT COURT. 

DISPOSITION: Judgment affirmed. 

COUNSEL: R. M. & W. O. Bradley, for appellant.

Granville Pearl, for appellee. 

JUDGES: Judge Cofer. 

OPINION BY: Cofer 

OPINION

 [*584]  Opinion by Judge Cofer:

If, as contended by the appellant's counsel, the order of arrest has been discharged, the mere expression of opinion by the quarterly court, that the plaintiff in that action had reasonable grounds to believe that the defendant was about to go out of the state, and that the plaintiff was entitled to the relief sought for in order of arrest, would amount to nothing. But the language of the judgment is that the defendant be released and discharged from arrest, and not that the  [*585]  order of arrest be discharged. The judgment does not show why or upon what grounds the defendant was released, and we cannot assume that the intention was thereby to discharge the order of arrest, and especially in view of the opinion expressed in the same judgment that the plaintiff was entitled to the relief sought in warrant of arrest.

It does not matter that the order may have been sued out maliciously and without probable cause; unless it has been discharged and the proceeding thereby terminated [**2]  in the defendant's favor, he cannot sustain an action for malicious prosecution or false imprisonment. Spring & Stepp v. Besore, 51 Ky. 551, 12 B. Mon. 551.

Judgment affirmed.

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