In the White case, supra, there was an illegal service of process resulting in an attachment of the rents of the alleged judgment debtor. The Court, at p. 106 of 73 Pa.Super., stated:
'* * * counsel * * * contends that seizure of the plaintiff's property by attachment execution was not a sufficient interference to justify the action; that to entitle the plaintiff to recover, the defendant's action against her had to be begun by seizure of her person or property. We find no such rule laid down in the books.
'In Kramer v. Stock, 10 Watts. 115, the Supreme Court said: 'If one abuses the process of the law, as by maliciously holding to bail, an action lies. So wantonly to levy a second execution after a former levy or for a larger sum than is due, or after the debt has been paid has been held actionable, for all these are illegal and damage is thereby sustained.'
Thus, in the case at bar, defendants here, after bringing the action in three separate ways, took from plaintiffs not only more than could be due but funds which were not due at all and, at the risk of being repetitious, indirectly forced them from their home.
In the Garland case, supra, the Court held that an action for abuse of legal process lies only where it is an unlawful interference with person or property, under color of the process. In that case, a bill in Equity was involved resulting in the appointment of a Receiver.
'* * * The bill makes the title to that property a main issue * * *. Whether it was or not can be settled in the equity suit, and not in this collateral proceeding. In any event, so long as nothing was done beyond the plain requirements of the bill and prayer, while it might constitute a malicious use of process, it would not be an abuse thereof.' 289 Pa. 272, 275, 137 A. 266, 268. (Emphasis supplied)
We distinguish our case because here considerable was done after the bill was filed.
The Muldoon case, supra, frequently cited in this type of litigation, we find not to be contrary to our opinion here. That case was bottomed on an unsuccessful action in ejectment and the case holds nothing more than that the mere bringing of an action, no matter how unfounded, bars recovery without more. In fact, that case actually stands for the principle that where there is an actual 'interference' with either the person or property, the issue is actionable. At the time of that case, and later, 'interference' was the keynote which today has become 'seizure.'
We clearly recognize the novelty of this case in a difficult field of law. We ask ourselves, on the basis of the cases herein analyzed: what remedy lies in law or equity to a plaintiff in the position of these if this action does not lie?
The development of the facts here left much to be desired, but we find no error which would warrant a new trial and the ends of justice would not be more adequately served were we to grant one. If we have erred, judgment n.o.v. should be entered. If not, the verdict of the jury stands. Accordingly, the following Order is entered:
And now, this 9th day of October, 1963, defendants' motion for judgment n.o.v. and in the alternative for a new trial is denied.
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