The foregoing leaves little to be said in an opinion supporting the judgment complained of.

Plaintiff has no real grievance unless there was a malicious prosecution, in that there was no probable cause for the action to prevent consummation of the sale to the county, and that the pretended cause of action was prosecuted for some ulterior purpose; or that there was probable cause for such action and the prosecution thereof was characterized by a combination to that end by defendants for the purpose of injuring plaintiff, primarily or wholly, instead of vindicating a right. If Neacy had probable cause, it matters not that he acted as he did, unless his conduct was characterized by combination with others for an ulterior purpose. In any event, damage is essential to such an action, and want of probable cause and malice as to Mr. Neacy, standing alone, and a combination moved by malice, as to the defendants in general.

Those principles are quite familiar. What one has a right to do, he may do maliciously and yet the damage to another be damnum absque injuria. But two or more persons have no right to act in combination, moved by intention to injure- or punish in some way rather than to vindicate a right. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840, explained and limited. Randall v. Lonstorf, 126 Wis. 147, 105 N. W. 663; State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; Jones v. Monson, 137 Wis. 478, 119 N. W. 179.

Looking at the mere effort, by judicial means, to prevent consummation of the land deal between appellant and Milwaukee county, we are unable to discover evidence upon *661which, a well-grounded suspicion of want of probable cause can rest. The evidence in the record and the history of the case of Neacy v. Milwaukee Co. 144 Wis. 210, 128 N. W. 1063, fairly show, affirmatively, that Mr. Neacy had reasonable ground to believe that there was serious danger of a great wrong being perpetrated upon Milwaukee county, and that intervention by a taxpayer’s action was the only instrumentality available to prevent it.

The action against plaintiff was not terminated, as counsel for him now insists, upon the ground that there was no evidence tending to establish the wrong alleged against him. Ear from that. In weighing the evidence the trial court came to the conclusion that it was not of sufficient preponderating weight to establish the allegation of fraud. That was affirmed here, and somewhat upon, the ground that the case involved a charge of criminality. Time, respondent failed in the prosecution, but mere failure of success of litigation does not furnish any ground to charge want of probable cause for commencing it. If that were not so, the result of every lawsuit would give rise to an action for malicious prosecution.

Mr. Neacy seems to have had his suspicions aroused by circumstances which were well calculated to have that effect. He then proceeded with commendable care to find out whether there was a substantial basis for believing what he suspected might be the situation. lie took the most natural and common method to that end, in employing a competent, reputable attorney to make an investigation, as to both the law and the facts, and report his conclusions, and by proceeding with deliberation on faith therein. In doing so he acted within his rights in commencing the action.

It is not only the right of a'taxpayer to appeal to the courts, as Mr. Neacy did, but it is laudable to do so. That is often the only way in which taxpayers can obtain protection against wrongful conduct of public officers. If the mere unsuccessful use of such remedy, would support such an action as this, *662means so often and efficiently resorted to for preventing or redressing a wrong to the public, would be of little use. There is no such danger.

On the subject of whether there was evidence tending to prove that defendants colluded together to injure appellant by commencing and prosecuting the Neacy action, and so they are guilty of an actionable wrong, whether the commencement and prosecution of the case was by itself lawful or not, we are unable to find any evidence. There is nothing in the record showing that Mr. McMynn acted otherwise than fairly in his professional capacity, ox that Mr. Baker, in joining with him, did not proceed within his field of discretion as a public officer. There was nothing particularly unusual on the part of respondents, from the beginning to the end of the litigation. The three joined, — Mr. Neacy as party, Mr. McMynn as his attorney, and Mr. BaJeer as assistant district attorney of the county, in commencing and prosecuting the action, for the sole purpose, so far as there is anything in the record to show, of preventing consummation of the real-estate deal between appellant and the county, which they believed, and had fair ground to believe, was illegal. That being the case, the trial court could not well have made any other disposition of the case than was done.

By the Court. — Judgment affirmed.