Indeed, plaintiffs' malicious prosecution claim did not arise until after the prosecutor dismissed the charges against them. See Coleman v. Strong, 105 Okla. 282, 232 P. 378, 379 (1925). Thus, as in Duesterhaus, plaintiffs' failure strictly to comply with the requirements of § 156(B) did not undermine the purposes of the statute.
This rule has also been adopted by a majority of those states addressing either the termination issue or the point at which the limitations period commences. E.g., Tenth Ward Rd. Dist. v. Texas Pac. Ry., 12 F.2d 245, 248 (5th Cir. 1926) (applying Louisiana law); Smith v. Hurd, 699 F. Supp. 1433, 1436 (D.Haw. 1988) (applying Hawaii law), aff'd, 985 F.2d 574, 1993 WL 28366 (9th Cir. 1993); Barrett Mobile Home Transp., Inc. v. McGugin, 530 So.2d 730, 733 (Ala. 1988); Moran v. Klatzke, 140 Ariz. 489, 682 P.2d 1156, 1157-58 (Ct.App. 1984); Cazares v. Church of Scientology, 444 So.2d 442, 447 (Fla.Dist.Ct.App. 1983); Commercial Credit Corp. v. Ensley, 148 Ind. App. 151, 264 N.E.2d 80, 86 (1970); Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964, 975 (1994); Breen v. Shatz, 267 S.W.2d 942, 943 (Ky.Ct.App. 1954); Parisi v. Michigan Townships Assoc., 123 Mich. App. 512, 332 N.W.2d 587, 591 (1983); Coleman v. Strong, 105 Okla. 282, 232 P. 378, 379 (1925). Our holding is also consistent with the rule we have applied in determining whether a baseless criminal prosecution has terminated in favor of the accused.
]Coleman v. Strong, 105 Okla. 282, 232 P. 378, 379 [1925]. V
" See, also, Coleman v. Strong, 105 Okla. 282, 232 P. 378; Robberson v. Gibson, 62 Okla. 306, 162 P. 1120. A careful examination of plaintiff's pleading discloses that each of the causes of action therein undertaken to be stated is fatally defective in one essential respect.
This is to proceed in a circle, and brings them out of the selfsame door in which they enter. The defendants cite Coleman v. Strong, 105 Okla. 282, 232 P. 378 (wherein the requisite averments in an action for damages on account of malicious prosecution are stated), and Shaw v. Cross, 83 Okla. 273, 201 P. 811, and Thelma Oil Gas Co. v. Sinclair Gulf Oil Co., 97 Okla. 5, 222 P. 686, wherein it was held that the burden of proof is at all times upon a plaintiff in an action to recover damages for malicious prosecution to establish malice and want of probable cause. The petition of the plaintiff contained the requisite averments, and since the sufficiency of the evidence has not been properly presented and challenged, we are not at liberty to presume that the verdict and judgment was erroneous, but, on the contrary, will presume that they are supported by the evidence.
"In an action for malicious prosecution, the burden of proof is upon the plaintiff to establish by the evidence want of probable cause and malice in instituting the proceeding, but where the evidence of the plaintiff fails to show malice and the absence of probable cause in prosecuting the proceedings complained of, it is not error for the court to sustain a demurrer to the testimony." And this court held, in the case of Coleman v. Strong, 105 Okla. 282, 232 I. 378, that the requisite averments for the maintenance of an action for damages for malicious prosecution of an action are: (a) The prosecution of the original suit by the present defendant.
21 C.J. Equity p. 243. Ansler v. Cavett, (Tex.) 271 S.W. 139; Harney v. Montgomery, (Wyo.) 232 P. 378. The building association admitted the allegations of plaintiff's petition.