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06/16/60 Mike J. Morfessis, v. Norman Baum and Lois

June 16, 1960

MIKE J. MORFESSIS, APPELLANT

v.

NORMAN BAUM AND LOIS SCHENK, APPELLEES.



Before FAHY, DANAHER and BASTIAN, Circuit Judges.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1960.CDC.92

June 16, 1960.

Petition for Rehearing En Banc Denied Sept. 19, 1960.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY

FAHY, Circuit Judge.

The District Court on motion of defendants struck a complaint *fn1 because not filed within one year of accrual of the alleged cause of action. Plaintiff appeals. The question is whether the complaint states a case of malicious prosecution. If so, it is subject to the one-year statute of limitations prescribed by 12 D.C.Code § 201 (1951), reading as follows:

"No action shall be brought . . for any statutory penalty or forfeiture, or for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest, or false imprisonment after one year from the time when the right to maintain any such action shall have accrued; and no action the limitation of which is not otherwise specially prescribed in this section shall be brought after three years from the time when the right to maintain such action shall have accrued . .."

The complaint is entitled "Abuse of Process." Plaintiff's position is that the tort action of that description, which he urges the complaint alleges, is not barred until three years. We think the complaint is one for malicious prosecution and, therefore, is barred by the shorter limitation period.

The complaint alleges that defendant Baum was attorney for Hollywood Credit Clothing Company, Inc., a corporation, and that defendant Schenk was an employee of the corporation; that the corporation obtained a judgment against plaintiff in the Municipal Court, and that, to the knowledge of the defendants, the judgment was satisfied. Notwithstanding this, it is alleged, defendants on or about January 3, 1958, caused the issuance of process by the Municipal Court in aid of the non-existent judgment, that is, a writ of attachment directed to the American Security and Trust Company, as garnishee, where plaintiff had loans and deposits, and thereby caused certain money on deposit to plaintiff's credit to be seized. Severe injury is alleged, in reputation, credit and otherwise. It is also alleged that defendants knowingly, intentionally, maliciously, oppressively, and with reckless or careless indifference to the rights and feelings of plaintiff caused the writ to be issued and the seizure to be made.

There is no doubt in this jurisdiction that the tort action of malicious prosecution may be based on the prosecution of a civil as well as a criminal action, including civil administrative proceedings. Melvin v. Pence, 76 U.S.App.D.C. 154, 130 F.2d 423, 143 A.L.R. 149. *fn2 So that our question is limited to whether the malicious pursuit of plaintiff by defendants by writ of attachment, as alleged, with the seizing of plaintiff's moneys in a bank on the false basis of executing on a judgment which to defendants' knowledge had been satisfied, is merely an abuse of process, with punitive damages awardable if accompanied with malice, or is a malicious prosecution of a civil action, albeit of an ancillary character. It clearly appears from the complaint that there was no probable cause for the issuance of the writ, the absence of which is one of the elements of malicious prosecution. The complaint as orginally drawn explicitly alleged that the issuance of the writ had been without probable cause. The second element usual to cases of malicious prosecution, namely, that the prosecution resulted favorably to the defendant, need not be alleged where the proceedings are ex parte, as was the issuance of the writ in this case. See Restatement, Torts, § 674, paragraph (h) (1938). The third element, malice, is alleged. The fact that were the action simply for abuse of process the allegation of malice would be surplusage except as a basis for punitive damages does not alter the fact that malice is alleged and gives character to the conduct described. Thus, a case of malicious prosecution appears.

It may be said in a sense that process was abused in being used when it should not have been used. But a proceeding against plaintiff and his assets was also prosecuted when it should not have been prosecuted. So, in ordinary language, there was both an abuse of process and a malicious prosecution. Chief Judge Rover pointed out for the Municipal Court of Appeals in Nolan v. Allstate Home Equip. Co., D.C.Mun.App. 1959, 149 A.2d 426, 429, that there is no distinction except in name between "malicious prosecution" and "malicious use of process." We may add that the malicious abuse of process is the malicious use of it and comes to malicious prosecution unless the use is for an objective foreign to the nature of the process; that is, unless some collateral end is sought rather than, as here, the end of tying up funds or property, which is the ordinary purpose of the attachment process. See Brown v. Westport Finance Co., D.C.W.D.Mo.1956, 145 F.Supp. 265; Root Grain Co. v. Livengood, 1940, 151 Kan. 706, 100 P.2d 714; Capitol Elec. Co. v. Cristaldi, D.C.D.Md.1958, 157 F.Supp. 646. But see Restatement, Torts, 682, illustration 2 (1938); and Hall v. Hollywood Credit Clothing Co., D.C.Mun.App.1959, 147 A.2d 866.

In other words, to describe or rationalize what is here alleged as an abuse of process does not change it from the tort of malicious prosecution. The complaint alleges all essential elements of that tort. The action thus pleaded cannot, therefore, be removed from its place in the law of torts by calling what occurred also an abuse of process. The cause of action stated involves the kind of malicious conduct plaintiff should have taken to court within a year if to be taken at all.

Affirmed.

MINORITY ...


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