160 N.C. 542 | N.C. | 1912
This action was brought to recover damages for the wrongful abuse of process, though it may be that there are sufficient allegations in the complaint, liberally construed, stating a cause of action for maliciously suing out an attachment.
There seems to be a misconception of the term, “abuse of process,” and some think that because a plaintiff may bring an action to recover a debt, and by an allegation that defendant has absconded, or concealed himself to avoid the service of process, and so forth, has attached his property, that plaintiff has abused the process of the court, if the allegations of plaintiff prove to be false. But not so. If the action in which the attachment was issued in the case supposed was wrongful, in that it was not based on probable cause, and malicious, defendant is liable, because his action was unlawful, and the wrong is actionable; but his action may have been legal, and yet, if he uses any process, mesne or final, in the course of the litigation wrongfully, with a bad motive or intention, or if, after it was issued, he uses it for a wrongful purpose, taking advantage of his right to have it, he puts it to an-unlawful use. Then we have quite a different remedy at hand.
The first cause of action was for maliciously suing out the attachment or maliciously prosecuting the attachment; the second, assuming even that the process was rightfully issued and based upon regular and lawful proceedings, is founded upon the idea that some foreign and false use is made of the process, the writ of attachment, for instance, as the Chief Justice has so aptly put the cas.e, in R. R. v. Hardware Co., 138 N. C., 175, where ¡the plaintiff(!(used the process to make an excessive levy upVn plaintiff’s property.
Much confusion as to 'the exact nature of these tofts and their differential characteristics has grown out of the fact that the malicious suing out of process has been confounded with the malicious abuse of process. The latter will support an action
The plaintiff in this case hardly states a cause of action for malicious prosecution, and if he has done so, there is absolutely no proof of it. The plaintiff proceeded in the orderly way to make service of the process by publication, proved his cause of action, and did everything else required by the law. The proceeding was regular in all its stages. The defendant in that action, plaintiff in this one, should have appeared and moved, upon affidavits or for other reasons appearing by the papers in the cause, to vacate the attachment, as being false in fact, or upon other legal grounds. The complaint, or affidavit, alleged enough to entitle plaintiff to an attachment, and we must assume that when the court upheld the attachment in that action, it found such facts, if not set forth in writing, as sustained its judgment. Lumber Co. v. Buhmann, ante, 385. The-defendant in that suit, plaintiff in this, is concluded or estopped by his inactivity from asserting that he was not given a fair chance in the progress of that cause. The facts show conclusively that he was negligent at every turn in the case, and the blame for his loss or damage, if any, lies at his own door, and was the result of his own remissness. There is not the slightest proof
Mr. Alexander has presented bis client’s case very ably and learnedly, in bis well prepared brief, but be did not have sufficient facts with which to win a verdict for him, and we must decide upon tbe facts.
We hope learned counsel will note the distinction between unlawfully and maliciously suing out an attachment or other process, and the wrongful abuse of process. the line of demarcation is well defined. An abuse of process consists in its employment or use for some unlawful purpose, which it was not intended by the law to effect, and amounts to a perversion of it. It is not the illegality or maliciousness of legal proceedings leading up to it, which forms the basis of a distinct cause of action for its abuse, which is independently actionable, when the process itself is used for an unlawful or oppressive purpose, or is used to coerce or harass the defendant. Lockhart v. Bear, 117 N. C., 304; Sneeden v. Harris, 109 N. C., 357; Perry v. Tupper, 71 N. C., 380; Hewitt v. Wooten, 52 N. C., 184; Kirkman v. Coe, 46 N. C., 428; R. R. v. Hardware Co., 135 N. C., 73 (s. c., 138 N. C., 175, and 143 N. C., 54); Jackson v. Telegraph Co., 139 N. C., 347; Ely v. Davis, 111 N. C., 26; Grainger v. Hill, 4 Brig. N. C., 212 (33 E. C. L. Rep., 328). the latest case is Ludwick v. Penny, 158 N. C., 104, at p. 111, where we said: “Speaking of the malicious abuse of process, be (Judge Cooley) distinguishes it from a malicious civil suit, where there is an interference with property or business, as follows: ‘If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, tbis is abuse for which an action will lie. the following are illustrations: Entering a judg
"We can see nothing in this ease but a plain action of debt, with the ancillary remedy of attachment, properly constituted and conducted. If the plaintiff lost anything in that suit, his failure, as we have said, is imputable to his own fault, for which no acíion lies. No man can base a cause of action upon his own laches. Plaintiff in this action had at least two remedies by which to redress his supposed wrong. lie could have moved to vacate the attachment under The Code and recovered his damages out of the bond, or he could have sued for a wrongful and malicious attachment, if there was not probable cause for resorting to the writ and he had vacated it. There is no “wrongful abuse of process,” in the technical sense, alleged, or shown in this ease. It would be necessary, in order to recover for malicious prosecution or maliciously and wrongfully suing out of the attachment, to show that the suit had been terminated favorably to plaintiff in this suit, at the time the action was commenced. Defendant’s suit may have been unlawful, and the
We are not inadvertent to the fact that several cases, decided in other jurisdictions, hold that there is an exception to the general rule we have stated, that the prior suit must have been terminated favorably to the plaintiff in an action for malicious prosecution, the exception being that where the former proceedings were ex parte, and the defendant in them had no opportunity of being heard, as, for example, in cases of malicious attachment, the rule does not apply. 26 Cyc., p. 57 and notes 15 and 17. We have examined the cases cited in note 17, and find that most of them were founded upon facts which would constitute an unlawful abuse of process, as an excessive levy under a warrant of attachment, not for the legitimate purpose of collecting the debt, but to harass and oppress the defendant therein. Zinn v. Rice, 154 Mass., 1, which is like the case in this Court of R. R. v. Hardware Co., 143 N. C., 54 (opinion by the Chief Justice), in which it was held that an excessive levy under an attachment was a wrongful abuse of the process, the Chief Justice saying: “ 'If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, this is an
The precise point in the case of Grainger v. Hall will appear from the headnote, which is as follows: “Placing a party under restraint of a sheriff’s officer who holds a writ of capias is an arrest, without proceeding to actual contact. In an action for abusing the process of the court in order illegally to compel a party to give up his property, it is not necessary to prove that the action in which the process was improperly employed has been determined, or to aver that the process was sued out without reasonable or probable cause.” So we do not think it sustains the conclusion of the Court in Fortman v. Rottier, supra, nor are we satisfied with or convinced by the reasoning in that case. Judge Suiliff filed a dissenting opinion, whieh seems to us to be a full and complete answer to the argument of the Court in support of its decision. He said: “I cannot perceive a want of analogy between the causes of action for maliciously commencing the suit without cause against a defendant, and for that of maliciously suing out an attachment against a defendant without cause.” He reasons thus: “Suppose, further, that in the civil suit the plaintiffs below had offered to prove to the court that the cause of action alleged against them was utterly groundless and fraudulent, and also had offered the same proof to dissolve the attachment upon the same motion, and suppose the justice to have refused to admit the proof of plaintiffs, either against the right of action or the right of attachment; it seems to me that in such a case there is no reason for holding the plaintiffs precluded in their right of action for instituting
No error.