The issue on this appeal is whether the plaintiff’s complaint sets forth a cause of action. The plaintiff contends that it sets forth a cause of action for libel, malicious prosecution in the nature of a wrongful garnishment, and abuse of legal process.
It is readily apparent that the complaint fails to set forth a cause of action for libel. Parties to judicial proceedings are absolutely exempt from responsibility for libel on the ground of privilege for any defamatory matter published in the course of judicial proceedings, subject to the possible qualification that such defamatory matter is pertinent or relevant to the case. Restatement, 3 Torts, p. 231, sec. 587; Prosser, Law of Torts (2d ed.), pp. 608, 609, sec. 95; 33 Am. Jur., Libel and Slander, p. 142, sec. 146; and 53 C. J. S., Libel and Slander, p. 167 et seq., sec. 104.
If the complaint does set forth a cause of action, it is one for malicious prosecution and not one for abuse of legal process. The distinction between abuse of process and malicious prosecution is pointed out by Prosser as follows (Prosser, Law of Torts (2d ed.), p. 667, sec. 100):
“Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.” See also 1 Am. Jur., Abuse of Process, p. 176, sec. 3; and 72 C. J. S., Process, p. 1188, sec. 119.
In the instant complaint there is no allegation that the garnishment action was perverted to a wrong use after having been justifiably or validly instituted. The whole gist of the cause of action alleged is that it was wrongfully instituted *436 for an improper purpose. In the comment note entitled, “Action for abuse of process,” Anno. 80 A. L. R. 580, the author states (pp. 580, 581):
“Where the matter complained of concerns the issuance of process, the action is either strictly or by analogy one for malicious prosecution. In this category are included actions for the malicious institution of criminal proceedings, the wrongful and malicious procurement of attachment or other process of seizure, and the institution of bankruptcy proceedings. . . . But where the thing complained of is not that issuance of the process was wrongfully procured, but that, having been issued, it was wilfully perverted, so as to accomplish a result not commanded by it or lawfully obtainable under it, the action has been denominated by well-considered cases as one for the abuse of process.”
In Italian Star Line v. United States Shipping Board E. F. Corp. (2d Cir. 1931), 53 Fed. (2d) 359, 80 A. L. R. 576, the court held that in order to make out a cause of action for abuse of process the plaintiff must prove “irregular steps’’ taken under cover of the process after its issuance. No irregular steps are alleged by the instant complaint to have been taken by the defendants after the issuance of the garnishment summons against the two banks.
We turn now to the question of whether the complaint sets forth a cause of action for malicious prosecution. In
Luby v. Bennett
(1901),
It appears from the annotation entitled, “Prosecution of civil suit, without arrest of person or seizure of property, as ground of action for malicious prosecution,” 150 A. L. R. 897, that we are in the minority, although rather a substantial one in so holding. We again gave our stamp of approval to the rule of
Myhre v. Hessey
in
Holmlund v. Zierke
(1954),
However, under this rule the detention of the funds of a party by garnishment is such interference with his property as to sustain an action of malicious prosecution.
Veitch v. Cebell
(1900),
*438 While the plaintiff’s complaint is not deficient in failing to allege special damages, it is fatally defective in another respect. This is because there is completely lacking any allegation that the defendants instituted the garnishment proceedings without probable cause. Such an allegation is absolutely essential in order to state a cause of action for malicious prosecution based upon a prior civil suit. Anno. 14 A. L. R. (2d) 264, 269, 275. The allegation that the defendants had no cause of action against the plaintiff at the time they instituted the garnishment proceedings is wholly insufficient to spell out a want of probable cause.
The plaintiff urges that want of probable cause may be inferred from the dismissal of the garnishment proceedings and cites
Bigelow v. Sickles
(1891),
“It is generally agreed that the termination of the proceeding in favor of the person against whom it is brought is no evidence that probable cause was lacking, since in a civil action there is no preliminary determination of the sufficiency of the evidence to justify the suit.”
By the Court.- — Order reversed, and cause remanded with directions to enter an order sustaining the demurrer to the complaint.