Gurley v. Tomkins
Supreme Court of Colorado
Appeal from District Court of Lake County. Action for malicious prosecution. The prosecution eorn‘plained of as malicious was commenced in February, 1884, by Rust, Harris & Co., a Denver firm, against H. H. Tomkins & Co., a Leadville firm, to recover an.alleged balance upon book account for goods sold and delivered. In November, 1884,- Charles D. Gurley became assignee of Rust, Harris & Co. for the ■ benefit of their creditors, and was substituted as plaintiff in the action.
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Appeal from District Court of Lake County. Action for malicious prosecution. The prosecution eorn‘plained of as malicious was commenced in February, 1884, by Rust, Harris & Co., a Denver firm, against H. H. Tomkins & Co., a Leadville firm, to recover an.alleged balance upon book account for goods sold and delivered. In November, 1884,- Charles D. Gurley became assignee of Rust, Harris & Co. for the ■ benefit of their creditors, and was substituted as plaintiff in the action. On March 19,1885, attachment proceedings' were instituted in said suit of Gurley, Assignee, v. Tomkins Co\, and Trimble…
1Opinion of the CourtJustice Elliott
The gravamen, of this action by Tomkins & .Co. is, that in *439a former action they were prosecuted by Gurley maliciously and without probable cause, and that they suffered damage by reason of such prosecution. To maintain this action, it was necessary that Tomkins & Co., plaintiffs below, should have proved:
1. That Gurley, the defendant, was a party to or assisted in the former prosecution;
2. That the former prosecution was finally terminated before the commencement of this action;
3. That there was no probable cause for the former prosecution ;
4. That the defendant Gurley was actuated by malice…
2Cases cited5 opinions
- Burton v. St. Paul, Minneapolis & Manitoba Railway Co.Supreme Court of Minnesota · 1885
- Brown v. WilloughbySupreme Court of Colorado · 1879
- Alexander v. HarrisonSupreme Court of Missouri · 1866
- Barrett v. SpaidsIllinois Supreme Court · 1873
- Batchelder v. FrankSupreme Court of Vermont · 1876
3Cited by18 opinions
- Montgomery Ward & Co. v. PhersonSupreme Court of Colorado · 1954
- Walford v. Blinder, Robinson & Co., Inc.Colorado Court of Appeals · 1990
- Grimes v. GreenblattSupreme Court of Colorado · 1910
- JS Dillon & Sons Stores Company v. CarringtonSupreme Court of Colorado · 1969
- Van Meter v. BassSupreme Court of Colorado · 1907
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