Lerner v. Borack

Mr. Presiding Justice Brown delivered the opinion of the court. This is a writ of error brought to reverse a judgment of the Municipal Court of Chicago in favor of the defendant in a suit brought for the malicious and unwarranted use of legal process, namely, an attachment writ on which a levy was made on plaintiffs’ goods. There is a distinction between the “malicious abuse of process” and the “malicious use of process.” If process is used maliciously, not for the ostensible purpose for which the law provides it, but for an ulterior purpose—for example, to intimidate, oppress or punish a person against whom it is sued out—-it is “malicious abuse of process.” If it is used in truth for its ostensible purpose—for example, to collect a debt by attachment, but so used unwarrantably and without probable cause—it is a “malicious use of process.” We think that even if the allegations of plaintiffs in error that the debt which it was sought to collect by attachment in this case was not due, are to be considered as proven by them- in the face of defendant’s testimony to the contrary—a conclusion which we are not disposed to concede—nevertheless the cause of action is the malicious use and not the malicious abuse of process. Therefore, even assuming further, as we do riot tliink we should in order to reverse this judgment, that the suing out of the attachment was “malicious” and that there was no other defense to this action, it would remain true that it must fail because it is not averred nor proven that' the attachment proceeding has terminated favorably to the plaintiffs. In the case of a suit for the “malicious use of process” as distinguished from an action for the “malicious abuse of process,” such averment and proof are necessary. Emery v. Ginnan, 24 Ill. App. 65; Reynolds v. DeGeer, 13 Ill. App. 113; Swepson v. Davis, 109 Tenn. 99, Mayer v. Walter, 64 Pa. 283; Grainger v. Hill, 4 Bing. N. Cas. 212 (Opinion by Park, J.); 1 Cooley on Torts (3rd Ed,) p. 353, note 42. It is true that the record, although not the abstract, shows that Lerner testified: “We paid $25 for attorney’s fees in defending the attachment suit and having the attachment writ quashed;” but apart from the fact that we will not go to the record to correct the abstract in order to reverse a judgment, this statement by itself does not show a final determination of even the attachment issue in favor of the defendant. Still less does it show “a favorable termination of the suit.” The judgment of the Municipal Court is affirmed. Affirmed.