A mistaken view of the law may constitute probable cause in some
instances -- probable cause does mean sufficient cause -- so held
as to a suit for infringement of registered trademark.
Although the opinion of the highest court of a state may be
resorted to for the purpose of showing that the court actually
dealt with a federal question presented by the record, or that a
right asserted in general terms was maintained and dealt with on
federal grounds, where the record discloses no federal question
until the assignment of errors in this Court, it comes too late,
and the writ will be dismissed.
Writ of error to review 181 N.Y. 1 dismissed.
The facts are stated in the opinion.
Page 203 U. S. 133
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action for malicious prosecution, brought by the
plaintiffs in error, in which the New York Court of Appeals ordered
judgment for the defendant in error. 181 N.Y. 1. The suit
complained of was a bill brought by the defendant in error in the
United States circuit court to restrain the infringement of a
registered trademark. A preliminary injunction was granted in that
suit. An appeal was taken to the circuit court of appeals, where
the injunction was dissolved, and, the plaintiff making default at
the final hearing, a decree was entered by the circuit court,
expressed to be upon the merits, and dismissing the bill. The
special damage alleged in the present action is the interruption of
the plaintiffs' business by the injunction while it was in
force.
In the case at bar, the trial court ordered a nonsuit on the
ground that the granting of the injunction by the circuit court
established probable cause. The principle of the decision in
Crescent City Lifestock Landing & Slaughterhouse Co. v.
Butchers' Union Slaughterhouse & Livestock Landing Co.,
120 U. S. 141,
that a final decree of the circuit court has that effect, even if
subsequently reversed, was thought to extend to a preliminary
decree.
See also Deposit Bank v. Frankfort, 191 U.
S. 499,
191 U. S. 511.
The decision of the trial court
Page 203 U. S. 134
was reversed by the appellate division. The defendant then took
the case to the Court of Appeals, assenting, as required, that if
the order should be affirmed, judgment absolute should be rendered
against him. As we have said, the order was reversed. The ground on
which a review is asked here is that the Court of Appeals, by its
reasoning, implies that it finds probable cause in its own opinion
that the decree in the former case was wrong, whereas not to assume
it to be correct is to fail to give it the faith and credit
required by Rev.Stat. ยง 905.
It is unnecessary to consider whether a court bound by a
previous judgment would not be warranted in saying that, if the
question had come before it in the first instance, it would have
decided the case the other way, and therefore that there was
probable cause for a mistake of law into which it would have fallen
itself. A mistaken view of the law may constitute probable cause in
some instances, as is shown by the case cited above. Probable cause
does not mean sufficient cause. But this last proposition shows
that the former decree could not have decided the question now
before the court, and therefore that the case is not properly here.
The former decree was conclusive on the merits of the suit in which
it was rendered, of course,
Lyon v. Perin & Goff Mfg.
Co., 125 U. S. 698, but
it only decided that that suit was brought without sufficient
cause. It decided nothing as to whether the plaintiff had probable
cause for expecting to prevail. If the Court of Appeals had
affirmed the judgment of the trial court for the reason that a
preliminary injunction fairly obtained from any court conclusively
established probable cause, or that there was no evidence of a want
of it, there would have been nothing to bring here, whether that
reason was right or wrong. The only ground on which our
jurisdiction is maintained is that the opinion of the Court of
Appeals shows that it gave a different and inadmissible reason for
the result to which it came.
No doubt an opinion may be resorted to for the purpose of
Page 203 U. S. 135
showing that a court actually dealt with a question presented by
the record, or that a right asserted in general terms was
maintained and dealt with on federal grounds.
Missouri, Kansas
& Texas Ry. Co. v. Elliott, 184 U.
S. 530,
184 U. S. 534;
San Jose Land & Water Co. v. San Jose Ranch Co.,
189 U. S. 177,
189 U. S.
179-180;
German Savings & Loan Society v.
Dormitzer, 192 U. S. 125. But
it would be going further than we are prepared to go if we took
jurisdiction upon the ground stated in this case.
Howard v.
Fleming, 191 U. S. 126,
191 U. S. 137.
The record discloses no question under the Constitution or laws of
the United States until we come to the assignment of errors in this
Court. Then it was too late.
Hulbert v. Chicago,
202 U. S. 275,
202 U. S. 280.
It is true that the complainants allege the decree, but that was
merely to show that the litigation complained of was ended, as was
required by the law of New York,
Marks v. Townsend, 97
N.Y. 590, 595, not to suggest a federal question, which at that
moment probably was not dreamed of. Even the opinion of the Court
of Appeals, which is not part of the record in New York, does not
disclose that there had been presented to it any argument or claim
of right based upon the effect due to the previous final decree
under the Revised Statutes, or indeed, in a specific way, upon the
effect of the decree in any light. Furthermore, notwithstanding a
few broad words relied upon by the plaintiffs in error, we doubt if
the Court of Appeals meant to lay down the proposition which we
have said that we would not discuss, or to go further than to
decide that the whole evidence was not sufficient to entitle the
plaintiffs to go to the jury in an action for malicious
prosecution, as that action is limited in New York.
It is argued that the Court of Appeals exceeded its functions
under the Constitution of the state, and in that way denied the
plaintiffs due process of law. We see no reason to think so, but
with that question we have nothing to do.
French v.
Taylor, 199 U. S. 274;
Rawlins v. Georgia, 201 U. S. 638.
Writ dismissed.