Dickerson v. Schwabacher, 58 So. 986

Dickerson v. Schwabacher

58 So. 986 | Ala. | 1912

SIMPSON, J.

This action is by the appellant against the appellee on the two counts of the complaint, set out by the reporter in the statement of the; case. The court sustained demurrers to both counts. Appellant’s brief claims that both counts are for malicious abuse of process, and, in order to a proper understanding of the case, it seems advisable to define the actions of malicious prosecution, and abuse of process, noting the distinguishing marks of each.

One essential difference between the actions is that malicious prosecution refers to malice and Avrong in the issuance of the process, Avhile abuse of the process refers to the malicious and Avrongful use of process which is regular and rightful in its issuance. This court has draAvn the distinction that “in the action of malicious prosecution against a plaintiff in attachment the attachment must be wrongful, and must have been sued out Avith malice, and Avithout probable cause. If not Avrongful — i. e., if the facts justify and authorize its’ issuance, if a statutory ground exists — no recovery can be had, though the defendant Avas actuated purely by malice in suing out the writ. If wrongful, but not malicious, no *376recovery can be had. If wrongful and malicious, but with probable cause, the action will fail. And if wrongful and without probable cause, and also without malice, no action can be maintained.”—Brown v. Master, 104 Ala. 451, 463, 16 South. 443, 447. In the same opinion, referring to the second count, which was for the malicious, etc., abuse of process, this court said: “But entering as she did under a valid writ, the defendant was not a trespasser, but nevertheless liable for wrongs which, as charged, she maliciously committed, or procured to be committed upon the plaintiff’s close and the plaintiff’s personal property stored therein, in an action on the case.”—104 Ala. 462, 16 South. 446. Judge Cooley says that: “If process, either civil or criminal, is willfully made use of for a purpose not justified by law, this is abuse for which an action will lie. The following are illustrations: Entering up judgment and suing out execution after the demand is satisfied; suing out attachment for an amount greatly in excess of the debt; causing an arrest for more than is due; levying an execution for an excessive amount; causing an arrest when the party cannot procure bail, and keeping him imprisoned until, by stress thereof, he is compelled to surrender property to which the other is not entitled.” Also he states: “By making use of it to accomplish, not the ostensible purpose for which it is taken out, but some other purpose for which it is an illegitimate .and unlawful means.” — Cooley on Torts, pp. 189-90. It is “the malicious perversion of a regularly issued process to accomplish some purpose whereby a result not lawfully nor properly attainable under it is secured,” as garnishing exempt wages, in order to “coerce the debtor into payment, out of his exemptions, to avoid discharge by his annoyed employer.”—Nix v. Goodhill, 95 Iowa, 282, 63 N. W. 701, 58 Am. St. Rep. 434; Kline v. Hib*377bard, 80 Hun, 50, 54, 29 N. Y. Supp. 807. “A malicious abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. Ih brief, it is the malicious perversion of a regularly issued process whereby a result not lawfully or properly attainable under it is secured.” —Bartlett v. Christhilf, 69 Md. 219, 229, 14 Atl. 518, 521.

The complaint in this case is not for malicious prosecution, nor does it sufficiently state a cause of action for the malicious abuse of legal process. According to the allegations of the complaint, it was simply the garnishment of a party supposed to be indebted to the defendant for a debt of |8.50. For aught that appears in the complaint, the debt was justly due, the cause alleged for the issuance of the garnishment was true, and such a cause as authorized the garnishment. The writ was used, not for any ulterior and unlawful purpose, but simply to collect the debt for which the writ of garnishment was properly issued. If the justice of the peace rendered judgment against the garnishee, without first having rendered judgment against the defendant, that was an error of the court, which could have been corrected by proper legal proceedings. The mere receiving of the money which the court adjudged him entitled to could not amount to such abuse of legal process as to be actionable. If such Avere the laAV, whenever one sues in a court of laAV, and the court improperly gives judgment in his favor, and he receives the money paid over to him by the court, or under the orders of the court, he would be guilty of the malicious abuse of legal process. The case of Oates v. Bullock, 136 Ala. 537, 33 South. 835, 96 South. 835, 96 Am. St. Rep. 38, Avhich was an action for false imprisonment by causing an arrest to be made on a void Avarrant, has no application to this case.

*378If the defendant, after the sustaining of the demurrers to the complaint, had desired to amend it, he should have made that fact known to the court. The minute entry shows that the parties were present in court by an attorney, and, in the absence of any showing to the contrary, it must be presumed that the defendant declined to amend, and the court properly rendered final judgment.—Buford v. Ward, Adm’r, 108 Ala. 308, 314, 19 South. 357; Mohon v. Tatum, 69 Ala. 467, 470.

The judgment of the court is affirmed.

Affirmed.

All the Justices concur.