188 S.E. 97 | N.C. | 1936
Civil action to recover damages for alleged (1) malicious prosecution, (2) abuse of process, (3) trespass, and (4) wrongful conversion.
The answer denies the material allegations of the complaint, sets up estoppel by judgment, and pleads the statute of limitations.
From a judgment of nonsuit, entered at the close of plaintiff's evidence, he appeals, assigning errors.
This is the same case that was before us at the Spring Term, 1934, reported in
In his application to appeal in forma pauperis, plaintiff avers he "is advised by two counsel learned in the law that there was error of law in the ruling of the court below." Just why he is advised and not represented by counsel is not apparent, unless, perhaps, the advice given was of the curb-stone variety or gratuitous kind.
A word about the record: Plaintiff was allowed forty days within which to prepare and serve his statement of case on appeal, and the defendants given forty days thereafter to serve countercase or file exceptions. The plaintiff duly served his case within the time. No exceptions *638
were filed by the defendants and no countercase was served by them. The plaintiff's statement of case, therefore, became the "case on appeal." C. S., 643; S. v. Ray,
Without undertaking to detail the evidence in the peculiar language of the record, suffice it to say plaintiff and his witnesses seem to testify, in substance, and apparently without objection: (1) That plaintiff was arrested on a false charge of trespass at the instance of the defendants; (2) that he was abused and mistreated by the officers on instructions from Little and Burns, the defendants; (3) that he was assaulted by defendants' agent, while under indictment; (4) that the trial in the municipal court was coram non judice; (5) that on appeal to the Superior Court, a nolleprosequi was entered; (6) that plaintiff has been greatly injured thereby, undergone "great suffwring," etc.; and (7) that the action is not barred by the statute of limitations.
Thus, on the record as it appears here, the plaintiff's evidence, taken in its most favorable light, would appear to be sufficient to carry the case to the jury. The proceeding in the municipal court, if, indeed, it were coram non judice, was a nullity, and the judgment rendered therein void. Greene v. Stadiem,
The null prosequi, subsequently taken in the Superior Court, was a sufficient termination of the prosecution to support an action for malicious prosecution based thereon. Dickerson v. Refining Co.,
There is this distinction between an action for malicious prosecution and one for abuse of process. In the former, it is necessary to allege and to prove three things, not required in the latter: (1) Malice, (2) want of probable cause, and (3) termination of proceeding upon which action is based. Wright v. Harris,
The distinctive nature of an action for abuse of process, as compared with an action for malicious prosecution, is that the former lies for the improper use of process after it has been issued, and not for maliciously causing process to issue. 1 Am. Jur., 176; Martin v. Motor Co.,
Speaking to the subject in Klander v. West,
The whole matter is thoroughly discussed, with full citation of authorities, in Carpenter v. Hanes, supra, and Wright v. Harris, supra. It would serve no useful purpose to elaborate it further here.
Reversed.