Abernethy v. . Burns , 210 N.C. 636 ( 1936 )

Civil action to recover damages for alleged (1) malicious prosecution, (2) abuse of process, (3) trespass, and (4) wrongful conversion.

The answer denies the material allegations of the complaint, sets up estoppel by judgment, and pleads the statute of limitations.

From a judgment of nonsuit, entered at the close of plaintiff's evidence, he appeals, assigning errors. This is the same case that was before us at the Spring Term, 1934, reported in 206 N.C. 370, 173 S.E. 899. There it was said in regard to the plaintiff, a layman, trying his own lawsuit: "He may not get to first base, but he is entitled to come to the bat." Continuing the simile, he did come to the bat at the May Term, 1936, and was called out on strikes. He again appeals, complaining at the rulings of the umpire.

In his application to appeal in forma pauperis, plaintiff avers he "is advised by two counsel learned in the law that there was error of law in the ruling of the court below." Just why he is advised and not represented by counsel is not apparent, unless, perhaps, the advice given was of the curb-stone variety or gratuitous kind.

A word about the record: Plaintiff was allowed forty days within which to prepare and serve his statement of case on appeal, and the defendants given forty days thereafter to serve countercase or file exceptions. The plaintiff duly served his case within the time. No exceptions were filed by the defendants and no countercase was served by them. The plaintiff's statement of case, therefore, became the "case on appeal." C. S., 643; S. v. Ray, 206 N.C. 736, 175 S.E. 109; S. v. Humphrey,186 N.C. 533, 120 S.E. 85; Carter v. Bryant, 199 N.C. 704, 155 S.E. 602;Barber v. Justice, 138 N.C. 20, 50 S.E. 445. It is far from "a concise statement of the case," and doubtless out of line with what transpired before the trial court, nevertheless, the defendants, by their silence or failure to return it with objections, have consented that "it shall be deemed approved." C. S., 643. It imports verity, and we are bound by it. S.v. Brown, 207 N.C. 156., 176 S.E. 260. The defendants say in their brief, "Unless the Court is thoroughly familiar with the history of all this litigation, it would be very difficult, from the record and appellant's brief, to know at time what he is talking about." This is quite true. The record is involved, couched in infelicitous terms, and difficult to comprehend. The conciseness of the transcript, as well as its clarity, doubtless would have been aided by a counter-statement of the case. But the time for this has passed. S. v. Ray, supra. We must take it as it is. S. v.Humphrey, supra.

Without undertaking to detail the evidence in the peculiar language of the record, suffice it to say plaintiff and his witnesses seem to testify, in substance, and apparently without objection: (1) That plaintiff was arrested on a false charge of trespass at the instance of the defendants; (2) that he was abused and mistreated by the officers on instructions from Little and Burns, the defendants; (3) that he was assaulted by defendants' agent, while under indictment; (4) that the trial in the municipal court was coram non judice; (5) that on appeal to the Superior Court, a nolleprosequi was entered; (6) that plaintiff has been greatly injured thereby, undergone "great suffwring," etc.; and (7) that the action is not barred by the statute of limitations.

Thus, on the record as it appears here, the plaintiff's evidence, taken in its most favorable light, would appear to be sufficient to carry the case to the jury. The proceeding in the municipal court, if, indeed, it were coram non judice, was a nullity, and the judgment rendered therein void. Greene v. Stadiem, 197 N.C. 472, 149 S.E. 685; S. v. Baxter,208 N.C. 90, 179 S.E. 450. Of course, we do not say such is the case — only that there is evidence on the record tending to show it. A void judgment may be attacked either directly (Oliver v. Hood, 209 N.C. 291,183 N.C. 657), or collaterally. Dunn v. Wilson, ante, 493; McKee v.Angel, 90 N.C. 60. It could not avail as the basis for a plea of estoppel. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283. Hence, the case of Price v. Stanley, 128 N.C. 38, cited and relied upon by defendants, is not controlling.

The null prosequi, subsequently taken in the Superior Court, was a sufficient termination of the prosecution to support an action for malicious prosecution based thereon. Dickerson v. Refining Co., 201 N.C. 90,159 S.E. 446; Winkler v. Blowing Rock Lines, 195 N.C. 673,143 S.E. 214.

There is this distinction between an action for malicious prosecution and one for abuse of process. In the former, it is necessary to allege and to prove three things, not required in the latter: (1) Malice, (2) want of probable cause, and (3) termination of proceeding upon which action is based. Wright v. Harris, 160 N.C. 542, 76 S.E. 489; Ludwick v. Penny,158 N.C. 104, 73 S.E. 228; Stanford v. Grocery Co., 143 N.C. 419,55 S.E. 815; R. R. v. Hdw. Co., 138 N.C. 175, 50 S.E. 571; Lockhart v.Bear, 117 N.C. 298, 23 S.E. 484; Jackson v. Tel. Co., 139 N.C. 347,51 S.E. 1015; 50 C. J., 612; 1 R. C. L., 101, et seq.

The distinctive nature of an action for abuse of process, as compared with an action for malicious prosecution, is that the former lies for the improper use of process after it has been issued, and not for maliciously causing process to issue. 1 Am. Jur., 176; Martin v. Motor Co.,201 N.C. 641, 161 S.E. 77; Griffin v. Baker, 192 N.C. 297, 134 S.E. 651;Lockhart v. Bear, supra.

Speaking to the subject in Klander v. West, 205 N.C. 524,171 S.E. 782, it was said: "In an action for abuse of process, it is not necessary to show malice, want of probable cause, or termination of the action; the two essential elements are the existence of an ulterior purpose and an act in the use of the process not proper in the regular prosecution of the proceeding. The act must be willful.Carpenter v. Hanes, 167 N.C. 551."

The whole matter is thoroughly discussed, with full citation of authorities, in Carpenter v. Hanes, supra, and Wright v. Harris, supra. It would serve no useful purpose to elaborate it further here.

Reversed.