195 A. 176 | Pa. Super. Ct. | 1937
Argued October 6, 1937. This is an action in trespass to recover damages for the alleged malicious abuse of legal process. The issue was raised by a statement of claim, and an affidavit of defense raising questions of law contending that the statement of claim discloses no cause of action against the defendant. The questions of law raised in the affidavit of defense were sustained and judgment was entered for defendant, in an opinion by LAMBERTON, J. This appeal followed.
The facts are accurately stated in the opinion of the court below, from which we quote as follows: "It is averred that Plaintiff acquired a piece of real estate in *127 the City of Philadelphia subject to an existing mortgage in the sum of $4,000 previously created by one Seligman in favor of Pottash Bros. Building and Loan Association; that on July 18, 1932, Plaintiff gave to the Building Association its bond in the penal sum of $8,000 as collateral security for the payment of said mortgage loan; that at the time of the execution and delivery of said bond, it was understood and agreed that the liability of Plaintiff thereunder should be limited to the current monthly dues, interest, fines and premiums upon the Seligman mortgage and that any execution issued upon a judgment entered upon said bond should be correspondingly limited; that the monthly payments upon said mortgage, as thereafter reduced, were $22.00; that thereafter, Defendant, Myer Feinstein, a director of the Building Association, did induce and illegally conspire with the other directors to enter the bond of Plaintiff of record, which was accordingly done on March 5, 1935, in Court of Common Pleas No. 3 of Philadelphia County, as of March Term, 1935, No. 790, and damages were assessed in the sum of $2,285; that Defendant thereafter caused an unrestricted execution to issue upon said judgment, attaching the goods and chattels of Plaintiff, particularly funds on deposit at the Philadelphia National Bank; that said act of Defendant was done willfully and maliciously, with full knowledge that said bond was restricted as above recited; that the purpose of Defendant and of the Building Association in causing an unrestricted execution to issue was to force Plaintiff to settle or compromise the claim of the Building Association; that Plaintiff, on March 8, 1935, filed a petition in Court of Common Pleas No. 3, setting forth the above facts and thereupon the Court allowed a rule upon the Building Association to present cause why the execution should not be limited to $88.00, plus a reasonable attorneys fee, and subsequent execution limited to the sum of $22.00 per month; that the *128 Building Association and Defendant caused an answer to be filed which was so incorrect and evasive as to delay the court in passing upon the question involved, whereby the credit of Plaintiff was impaired; that Plaintiff has been obliged to spend large sums of money in obtaining legal advice and assistance in defending the said action, and in attempting to curb said execution and abuse thereof, and in protecting its name, credit and business.
"Defendant filed an affidavit of defense raising questions of law which may be briefly stated as follows: 1. That the Statement of Claim shows no cause of action against Defendant. 2. That it is incumbent upon Plaintiff to plead that the original action has terminated favorably to him, which Plaintiff has failed to do, the fact being that said action terminated unfavorably to Plaintiff. . . . . .
"We have examined the record in the case of Pottash Bros.Building and Loan Association v. Fenton Storage Co. in the Court of Common Pleas No. 3, as we have a right to do, since this record is included in the Statement of Claim by reference. We find that on March 20, 1935, counsel for the parties entered into a stipulation, approved by Judge MILLAR, providing that Fenton Storage Company should forthwith pay to Pottash Bros. Building Association the sum of $200, plus actual costs expended, and should thereafter pay $30.00 per month until the full sum of the judgment, to wit, $2,285, is paid; that if there be any failure on the part of the Fenton Storage Company to pay any such installment, execution might immediately issue for the full balance then unpaid; that the rule to limit execution be withdrawn. Pursuant to said stipulation, said rule was withdrawn on March 20, 1935, and the record shows no further proceedings.
"While the Statement of Claim does not clearly differentiate between the entry of judgment and the issuance of execution, Plaintiff's brief shows that Plaintiff does not complain about the entry of judgment, but *129 complains about and asks damages on account of the unrestricted execution."
Appellant contends, quoting from the brief of counsel that: "It admits the full amount of the judgment, but says that the defendant in violation of his agreement used a legal process in such a way as to accomplish an ulterior object, not contemplated by the process, to wit: the forcing from the defendant in the action (the plaintiff here) the payment of more money than it was obliged to pay at that time for the particular purpose of the Plaintiff. To that extent it was a clear abuse of a legal process; the ulterior object of the then Plaintiffs being to obtain the full amount of their debt at once, perhaps, and it might be fairly argued, for the purpose of more quickly liquidating the Association."
Quoting from Mr. Justice SHARSWOOD, in the case of Mayer v.Walter,
"On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by *130 it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be determined finally before any action lies for the injury; . . . . . . It is necessary that the proceeding should have come to an end, and that end must have been a successful one to the plaintiff; otherwise it shows actual, which is more than probable, cause. . . . . ."
Quoting from the opinion of the court below in the instant case: "It will be noted that the presence of malice does not determine in which class an action belongs, for malice is an essential ingredient of both classes. The distinction lies in the object for which the legal process is used. If it be used maliciously for a purpose other than that for which it is designed, it is a malicious abuse of legal process, and an action to recover damages may be immediately instituted. But, if it be used for the purpose for which it is designed, even though there be malice, no action may be brought until the matter has been adjudicated favorably to the plaintiff. In this case the legal process employed was attachment execution to enforce payment of a money judgment. This is the very purpose for which an attachment execution is designed. Consequently, Plaintiff's complaint is for the malicious use of legal process."
The distinction referred to has been recognized in all of the cases in the appellate courts of our state: see inter alia,Shane v. Gulf Refining Co.,
The nature of the plaintiff's complaint arises out of the alleged issuance of the attachment for a sum greater than, according to the plaintiff's version, could properly be collected on the judgment entered. The attachment was used to accomplish the ordinary, usual, legal object of such process. It is clear that the rules to be applied in a consideration of the sufficiency of plaintiff's pleading are the rules applicable to an action for malicious use of process. There was no complaint of a perversion of the writ of attachment issued by the plaintiff in the prior suit. The writ in question sought only to effect the legal object of the process and not to serve any purpose which the law did not intend to be accomplished by such writ. As stated in Hauser v. Bartow,
Applying the rules applicable to a case of an alleged malicious use of legal process, such action cannot be commenced or maintained until the cause of action has been finally determined in favor of the defendant therein. Mr. Justice WALLING in Garland v. Wilson,
In Braddee v. Brownfield, 4 Watts 474, 475, Mr. Chief *132 Justice GIBSON said: "A judgment on warrant of attorney is as much an act of the court as if it were formally pronounced on nil dicit, or a cognovit; and till it is reversed or set aside, it has all the qualities and effect of a judgment on verdict."
The demurrer to the plaintiff's pleading in an action for malicious use of legal process upon the ground, inter alia, that it was not alleged that the action upon which the process issued had been finally determined in favor of the defendant therein (the plaintiff in the present suit) was held properly sustained in Davis v. Hall, 93 S.E. (Ga.) 25 (1917).
In Saliem v. Glovsky,
A demurrer to a statement for malicious use of civil process, in Roberts v. Willys-Overland, Inc.,
In Beadle v. Friel,
The present action by plaintiff is in effect a collateral attack upon the judgment against plaintiff while the judgment stands unappealed from, unreversed and unimpaired. *133 The rule to limit the execution was by stipulation withdrawn and no further proceedings followed. The compromise embraced in the stipulation barred any alleged claim for malicious use of process, as it specifically provides that in case of any default by the defendant to make any monthly payment, and such default continues for ten days after mailing written notice to the defendant, the plaintiff shall be privileged to issue execution for the amount of $2,285 together with interest, less such moneys paid on account of the $2,285 as the plaintiffs may desire under the judgment entered in said case. Plaintiff (defendant in the original judgment) admits that at the time of the entry of judgment it was in default for four months dues, or a total of $88.
By compromising and settling the judgment entered against it, plaintiff is estopped from maintaining this action.
Sacchetti v. Sandt,
In Alianell v. Hoffman,
Quoting from 38 C.J. 443, 444: "Where the termination of a criminal prosecution or civil action has been brought about by the procurement of defendant therein, or by compromise and settlement, an action for malicious prosecution cannot be maintained."
As the rule is stated in 18 R.C.L. 25, Sec. 13: "It is generally held that where the original proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties . . . . . . there is no such termination as may be availed of for the purpose of an action for malicious prosecution. The reason for this rule is that where the termination of a case is brought about by a compromise or settlement between the parties, understandingly entered into, it is such an admission that there was probable cause that the plaintiff cannot afterwards retract it and try the question, which by settling he waived."
The alleged parol agreement set up in the Statement of Claim, that the liability on the bond should be restricted in accordance with the resolution of the board of plaintiff company authorizing the execution of the bond, cannot vary the terms of the written instrument.
As was held in Germantown Trust Co. v. Emhardt *135 No. 1)
After careful consideration, we are of the opinion that the court below properly sustained the questions of law.
Judgment affirmed.