176 F. 481 | 5th Cir. | 1910
(after stating the facts as above). The exception of no cause of action was addressed to the petition as an entirety. Being sustained, it necessarily led to the dismissal of the suit. The question raised here is whether or not the Circuit Court erred in sustaining the exception. On an exception of no cause of action, the petition is taken as true, and if it states facts which entitle the plaintiff to judgment, if proved to be true, the exception should be overruled and the case tried on its merits. Goldsmith v. Virgin, 122 La. 831, 48 South. 279. When the petition seeks to recover several separate sums on a statement of facts relating to each claim, and is met by an exception of no cause of action presented as a defense to the entire petition, it should not be sustained if the plaintiff have a cause of action, within the jurisdiction of the court, on any branch of the case made by the petition. Bank v. Bank, 50 La. Ann. 528, 24 South. 41.
It appears from the petition that the plaintiff, Henry Gonsouland, sold to the defendant, Marco Rosomano, certain real estate; that the act was signed and the property transferred and the conveyance recorded in the defendant’s name; that the defendant failed and refused to pay any part of the purchase price; and the plaintiff was compelled to resort to the state court to secure the annulment of the sale, and to have restored to him the title and possession of the property sold. In that suit the plaintiff obtained judgment as prayed for.
During the pendency of the plaintiff’s suit for the annulment o f the sale, the defendant, Rosomano, brought two suits in the Second city court of New Orleans against the plaintiff, Gonsouland, one for the possession of the property bought by him, and the other on a claim for rent. In the suit for rent, by the direction of the defendant herein, there was a seizure of the stock and fixtures, the property of the plaintiff contained in another house — not the one for which the rent was claimed. The plaintiff, to maintain his credit and lessen the injury to his business, paid under protest the claim for rent and all costs in both suits. The defendant, who had not paid any part of the purchase money for the real estate, and knowing that a suit was pending against him to annul the sale, obtained a judgment of possession and caused to be issued a writ of ejectment, and, under the writ, evicted the plaintiff, Gonsouland, and his family, and seized all of his furniture, bed, bedding, and wearing apparel of himself, wife, and children, depriving them of its use, notwithstanding its exemption from seizure. The seizure was made by the direction of the defendant, Rosomano, to the officer in charge of the execution, and the property taken was never
The plaintiff concludes this branch of the case by claiming as damages a sum exceeding $.3,000 for the unlawful destruction of his property, the illegal detention and conversion of his personal property, and for being made to suffer the “indignity and mental worry in the eyes of his friends and neighbors.”
It is not necessary, for us to consider the various claims for other and different sums asserted in the petition. No pleading is before us raising questions about them separately. We direct our attention to one branch of the suit only.
The petition, taken as an entirety, and disregarding surplusage, seems to us to contain sufficient allegations of facts, if true, to show the unlawful, willful, and malicious abuse of the process of the state court.
In sustaining the exception of no cause of action,' the court below was probably influenced by the fact that Rosomano was successful in his suit to eject Gonsouland. To be influenced by that fact appearing in the petition is to confound the case made by the petition with an action for malicious prosecution. The gravamen of the complaint here is not the malicious suing out of process, but the action is founded on the abuse of process. In an action for the malicious use of process— malicious prosecution — the plaintiff must ordinarily aver in his petition that the defendant instituted the proceeding with malice and without probable cause, and that the case has terminated in his favor; and this he must prove to be entitled to a judgment for damages. Wheeler v. Nesbitt, 34 How. 544, 16 L. Ed. 765; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116. Where the action is predicated upon the abuse of process, such averment or proof is not required. Grainger v. Hill, 4 Bing. N. C. 212, 7 L. J. (C. P.) 85; Railroad Co. v. Hardware Co., 143 N. C. 54, 55 S. E. 422; Page v. Cushing, 38 Me. 523,. 537; Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551. An action for the malicious abuse of lawful process, civil or criminal, will lie, although the process was lawfully issued upon a valid judgment for a just cause, and is valid in form. The grievance for which redress is sought arises in consequence of subsequent acts — tire illegal and malicious abuse of the power conferred by the judgment and writ. The principle is general and has been enforced in a great variety of cases. It is applicable to all kinds of abuses in the service of lawful process. For every such wrong there is a remedy, not only against the officer whose duty it is to act lawfully, but against all who unite with him or direct him to inflict the injury. Wood v. Graves, 144 Mass. 365, 11 N. E. 567, 59 Am. St. Rep. 95; Mayer v. Walter, 64 Pa. 283, 286; Rogers v. Brewster, 5 Johns. (N. Y.) 125; Antcliff v. June, 81 Mich. 477, 45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533; Casey v. Hanrick, 69 Tex. 44, 6 S. W. 405; Wanzer v. Bright, 52 Ill. 35; Crusselle v. Pugh, 71 Ga. 744, 747; Juchter v. Boehm, Bendheim & Co., 67 Ga.
In Crescent Live Stock Co. v. Butchers’ Union, 120 U. S. 141, 147, 7 Sup. Ct. 472, 479 (30 L. Ed. 614), Mr. Justice Matthews, speaking for the Supreme Court, said:
“It is eoueeded that, according to the law of Louisiana, the action for a malicious prosecution is founded on the same principles', and subject to the same defenses, as have been established by the common law prevailing in the other states.”
And there is no reason why the same is not true as to an action for the abuse of process. Civil Code of Louisiana, art. 2315 (2294).
Besides showing an abuse of process, the petition as a whole presents an actionable case for fraud and deceit. The averments are to the effect that the defendant acted in had faith throughout the transaction ; that he never intended to make payment for the real estate, but obtained the conveyance with the intent to secure possession of the property, real and personal, without paying for it, and to make such profit and gain as he could without any compensation to the plaintiff. The scheme was successful to the plaintiff’s damage, and the defendant unjustly profited by it. The process of the court being harshly and oppressively used to carry out such purpose, the action, as we have shown, lies for the abuse of the court’s process. But the same facts also constitute a fraud and deceit which is actionable at law on general principles. It was held by the Supreme Court that an action lies for obtaining a certificate of stock by deceit. Fenemore v. United States, 3 Dall. 357, 1 L. Ed. 634. It is an old and well-settled doctrine that, in all cases where a person sustains pecuniary loss or damage by the deceit and fraud of another, an action on the case lies at the suit of the partly injured to repair the wrong. This is recognized both by the "English and the American courts. Pasley v. Freeman, 3 Durnf. & E. 51; Dobell v. Stevens, 3 B. & C. 623, 10 Com. Law Rep. 201; Young v. Hall, 4 Ga. 95; Lowe v. Trundle, 78 Va. 65; Allison v. Tyson, 5 Humph. (Tenn.) 449; Applebee v. Rumery, 28 Ill. 280.
In this day, it should make no difference - what an action may be called. The question is whether the facts stated show a wrong and injury to the plaintiff by the defendant for which he is entitled to redress. It would be intolerable if the law afforded no remedy for a deliberate and successful cheat, enforced and carried out by the abuse of legal process, whereby the plaintiff was damaged and the defendant profited unjustly.
What we have said is, of course, based upon the assumption that the averments of the petition are true, and must be considered without prejudice to the defendant in a trial on the merits.
Judgment reversed, and cause remanded for a new trial.
