Shamberger v. Dessel

Marbury, J., delivered the opinion of the Court. This is an appeal by the counterclaim-plaintiff, George R. Shamberger, appellant, from a judgment for costs in favor of the counterclaim-defendant, George R. Dessel, appellee, following the sustaining of a demurrer to appellant’s second amended counterclaim. In September 1960, Gertrude Dessel Kratsch died, leaving a purported last will and testament which bequeathed to George R. Shamberger the rest and residue of her estate, including both real and personal property. On October 17, 1960, George R. Dessel instituted a caveat proceeding prior to the probate of Mrs. Kratsch’s will.

On January 8, 1963, the appellee dismissed the caveat “with prejudice.” Appellee filed a declaration for the recovery of $2500 against Shamberger on February ³²⁰ 27, 1963. This is the amount which the appellee claimed was the agreed consideration for him to discontinue the caveat proceedings, which he alleged had not been paid. Thereafter, the appellant filed a general issue plea, and his first counterclaim in three counts, alleging in the first count that the appellee maliciously prosecuted a caveat to the aforesaid will; in the second count that he abused process in filing the caveat; and in the third count that he conspired with his attorneys to accomplish the alleged malicious prosecution and abuse of process. A demurrer thereto was sustained by Judge Carter on September 23, 1963, with leave to amend within fifteen days.

On October 8, 1963, appellant filed an amended counterclaim, and a demurrer was filed thereto on October 11, 1963. Judge Carter sustained the demurrer again with leave to amend within fifteen days. Following this, appellant, on December 23, 1963, filed a second amended counterclaim, setting forth essentially the same allegations as in his prior counterclaims. A demurrer was again filed thereto, and a third hearing held before Judge Carter.

At this time, on January 17, 1964, Judge Carter sustained the demurrer without leave to amend. Judgment was entered for appellee for costs, which gives rise to this appeal. The appellant’s principal contention is that his second amended counterclaim states a good cause of action for malicious prosecution. The essential elements in a civil action for malicious prosecution are: (a) the institution or continuation of a proceeding by the present defendant against the plaintiff; (b) the termination of such proceeding in the present plaintiff’s favor; (c) absence of probable cause or malice in instituting the proceeding; and (d) that damages were sustained by the plaintiff.

Jannenga v. Libernini, 222 Md. 469, 160 A. 2d 795 ; Safeway Stores, Inc. v. Barrack, 210 Md. 168 , 122 A. 2d 457 . Here, the caveat was filed before probate of the will which suspended the right of the appellant to possession of the property as a legatee or devisee. However, a caveat filed after probate would have left the appellant in possession of the decedent’s real property and the decedent’s personal property in the possession of the executor named in the