104 S.E. 764 | N.C. | 1920
The defendant in this action heretofore instituted an action against the plaintiff herein to restrain him from the erection of a gin stand by reason of a written agreement which the court held invalid because *387
in restraint of trade. Shute v. Shute,
The complaint alleges three causes of action: (1) For abuse of process and wrongful suing out of process; (2) for malicious prosecution; (3) for treble damages for injury to business, as provided in ch. 41, sec. 14, Laws 1913. The defendant demurred to the first cause of action on the ground that there is no allegation of "any facts showing any irregular use of process in the former action," and moved to dismiss. The defendant demurred to the second cause of action because "the institution of the former action and the prosecution of the appeal therein cannot be ground for an action for malicious prosecution," and to the third cause of action on the ground that "any damages occasioned by the suing out of the restraining order could be recovered only in the action wherein the restraining order was granted, and not by a new and independent action," and moved to dismiss.
The judge sustained the demurred and dismissed the action. The plaintiff appealed. The defendant relies upon Rev., 817, C. S., 854, which requires a bond to secure the payment "of such damages as the defendant may sustain by reason of the injunction and Rev., 818, C. S., 855, that upon judgment dissolving an injunction, the plaintiff may recover damages caused by the suing out thereof "without the requirement of malice or want of probable cause in procuring the injunction, which damages may be ascertained by reference or otherwise, as the judge shall direct, and the decision of the court shall be conclusive as to the amount of damages upon all persons who have an interest in the undertaking."
The defendant relies upon Crawford v. Pearson,
The requirement of an injunction bond does not restrict the right of the defendant to recover damages sustained by him above the amount of such bond, nor to the causes of damages by reason of a breach of the provisions of such bonds.
It is still open to the defendant to elect not to avail himself of the remedy of a motion for judgment upon the bond for an amount within the penalty of the bond, "to be ascertained by the judge or referee," but he may bring an independent action where he deems that the damage sustained is greater than the penalty of the bond, and if there are grounds to recover damages not within the contemplation of the bond, such as for malicious prosecution, abuse of process, or for injury to business, and to have such damages assessed by jury.
This Court has often held that "an action will not lie for malicious prosecution in a civil suit unless there was an arrest of the person, a seizure of property, as in attachment proceedings at law, or their equivalent in equity or other circumstances of special damage." Terry v.Davis,
In Coal Co. v. Upson, 40 Ohio State, 25, it is stated to be "the approved doctrine that an action for malicious prosecution may be maintained whenever by virtue of any order or writ issued in a malicious suit, the defendant in that suit has been deprived of his personal liberty, or the possession, enjoyment, or use of property of value. The name or form of the writ or process is immaterial. It may be an order of arrest, or attachment, or of injunction." This was cited with approval in R. R. v.Hardware Co.,
"The former action (for malicious prosecution) exists when legal process, civil or criminal, is used out of malice and without probable cause." Stanford v. Grocery Co.,
The demurrer admits that the plaintiff suffered actual damages of $4,716, and is entitled to punitive damages in three times that amount, but if he were restricted to a motion on the injunction bond for damages, his recovery would be limited to whatever the judge or referee might allow him, not to exceed the penalty of the bond, $500. Timber Co. v. Rountree,
The demurrer also admits that the plaintiff expended $1,000 reasonable attorneys' fees, and costs and expenses of defending the suit, and was forced to do this by the admittedly oppressive conduct of the defendant (the plaintiff in the former case), but this could not have been recovered by motion against the bond in the former suit. Midgett v. Vann,
"Where an injunction has been wrongfully issued, there is no liability for damages except upon the injunction bond, unless the party against whom the injunction was issued can make out his case of malicious prosecution by showing malice or want of probable cause on the part of the party who obtained it." 22 Cyc., 1061, citing Burnett v. Nicholson,
"What is said to be the better rule, however, is that although a party may have his remedy on the bond, yet this is not exclusive, and he may, in a proper case, also have a right to maintain an action at law." 14 R. C. L., p. 481, sec. 183, citing Howell v. Woodbury,
"While it is well settled, both in England and in this country, that an action for malicious prosecution will lie against one who has maliciously and without probable cause procured the plaintiff to be indicated or arrested for an offense of which he was not guilty," 18 R. C. L., 13, the authorities differ widely as to the application of such remedy where a civil action has been brought maliciously and without probable cause. In England, before the Statute of Marlbridge (52 Henry III.), such action would lie in a civil case, but that statute gave the defendant, who prevailed in the cause, not merely his costs, but also his damages and subsequent legislation showed that the object was to afford a summary remedy for damages in the action in lieu of an independent action to recover damages for malicious prosecution of a civil action.
In this country, though the institution of a civil action maliciously and without probable cause is generally considered a sufficient basis for malicious prosecution by a defendant who has suffered special damage, the authorities are in hopeless conflict whether in such a case a recovery can be had without seizure of property, arrest of person, or other special circumstances. 18 R. C. L., 13.
In Hubble v. Cole,
Our statute, as amended by the act of 1893, ch. 251, is now C. S., 855, and gives the defendant an inexpensive and expeditious remedy by *390 motion in the cause without requiring proof of malice or want of probable cause, and the "damages may be ascertained by a reference or otherwise, as the judge directs, and the decision of the court is conclusive as to the amount of damages, upon all persons who have an interest in their undertaking." But we do not understand that this deprives the defendant of his common-law right of action, if he does not elect to take the remedy given him to proceed by a motion in the cause, and especially this is so where the damages are sought for malicious prosecution.
In Gold Co. v. Ore Co.,
In Timber Co. v. Rountree,
Mahoney v. Tyler,
In Tyler v. Mahoney,
Reversed.
ALLEN, J., dissenting.