Ellis v. Wellons

ScheNCK, J.

We will first discuss the defendant’s appeal, since the conclusion we have reached thereon renders any extensive discussion of the plaintiff’s appeal supererogatory.

The defendant seriously presses his assignments of error addressed to the refusal of the court to allow his motion in the alleged cause of action for abuse of process for a judgment as in case of nonsuit lodged when the plaintiff had introduced his evidence and rested his case and renewed after all the evidence on both sides was in. C. S., 567; G. S., 1-183.

“Abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a regularly issued process whereby a result not lawfully or properly attainable under it is secured. A power conferred by legal process may not be abused or exercised with unreasonable indignity or oppressive hardship to another. The abuse may be of civil or criminal process.” 1 Am. Jur., Abuse of Process, par. 2, p. 176. The distinctive nature of an action for abuse of process is the improper use of process after it has been issued, and not for maliciously causing it to issue. Where the process has been lawfully issued and has subsequently willfully been perverted so as to accomplish a result not commanded by it or lawfully obtainable under it the action for abuse of process lies. Griffin v. Baker, 192 N. C., 297, 134 S. E., 651, and cases there cited. There are two essential elements for an action for abuse of process, (1) the existence of an ulterior motive, and (2) an act in the use of the process not proper in the regular prosecution of the proceeding. Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577. Measured by this standard, there was sufficient evidence in the case at bar to be submitted to the jury and to sustain the verdict rendered.

It was admitted that the defendant procured the arrest and prosecution of the plaintiff. The plaintiff testified that he did not owe the defendant any amount and that when he (plaintiff) refused to pay him (defendant) the amount claimed, the defendant procured the warrant from the clerk of the recorder’s court charging the plaintiff with having disposed of a crop of tobacco, after executing an-agricultural lien thereon without applying the proceeds in payment of such, lien, with intent to defeat the rights of the defendant, lienee, and had the plaintiff arrested and incarcerated thereunder; that after such warrant was issued the defendant told plaintiff he would not have it served if plaintiff would pay the defendant what he claimed was due to him by plaintiff; and after plaintiff had been arrested and lodged in jail upon said warrant, and ivhile be was in jail, tbe defendant came to bim and told plaintiff tbat be, defendant, would procure bis release if be, plaintiff, would agree to pay bim, defendant, tbe amount be claimed, and further, be, defendant, would procure plaintiff’s release if be would agree to go to Fayetteville and work in defendant’s guano plant and there work out tbe amount claimed. This was evidence tbat tbe motive of tbe defendant was to collect what be claimed was due bim from tbe plaintiff, which was an ulterior motive, a motive foreign to tbe only legitimate purpose for which tbe warrant could have issued, namely, to punish tbe person charged for tbe commission of tbe offense against which tbe law inveighs. This was not only evidence of an ulterior motive, bad intent or wicked purpose, but also evidence of such motive, intent or purpose finally culminating in an abuse, which is tbe gist of tbe action. Carpenter v. Hanes, supra. Tbe testimony of tbe plaintiff likewise furnishes evidence of acts in tbe use of tbe process, after its issue, which were not proper in tbe regular prosecution of tbe proceeding.

While it is true tbe defendant’s testimony contradicted in part and denied in part tbe plaintiff’s testimony, such variance presented issues of fact for tbe jury and not solely questions of law for tbe court, and rendered tbe demurrer to tbe evidence, and tbe assignments of error based thereon, untenable.

Tbe defendant also stresses assignments of error based upon tbe contention tbat tbe charge of tbe court did not comply with C. S., 564; G-. S., 1-180, in tbat it failed to properly declare and explain tbe law arising on tbe evidence.

It should first be observed tbat tbe exceptions to tbe charge upon which these assignments of error are based are not made in strict accord with Rule 28, Rules of Practice in tbe Supreme Court, 221 N. C., pp. 564-5, but passing this apparent failure to comply with tbe rule, we do not concur in tbe position taken by tbe defendant tbat tbe charge fails to comply with tbe statute, since it presents tbe principal features of tbe evidence relied upon by tbe respective parties, states tbe positions taken by them, and declares and explains tbe law arising on tbe evidence. 8. v. Graham, 194 N. 0., 459, 140 S. E., 26. An exception simply to tbe general failure of tbe judge to state in a plain and correct manner tbe evidence and declare and .explain tbe law arising thereon is too general and cannot be sustained. Jackson v. Lumber Co., 158 N. C., 317, 74 S. E., 350.

“Besides, any omission to state tbe evidence or to charge in any particular way, should be called to tbe attention of tbe court before verdict, so tbat tbe judge may have opportunity to correct tbe oversight. A party cannot be silent under such circumstances and, after availing himself of tbe chance to win a verdict, raise an objection afterwards. He is too late. His silence will be adjudged a waiver of his right to object. The subject is fully discussed in Simmons v. Davenport, 140 N. C., 407.” Davis v. Keen, 142 N. C., 496, 55 S. E., 359. In the case •at bar no special instructions were prayed and no omission of evidence', nor error in the stating thereof, was called to the attention of the court by the defendant. The court directed the attention of the jury to the principal questions which were under investigation and explained the law applicable thereto. This was all required of him by the statute in the absence of prayers for special instructions.

The defendant advances the argument that since the jury failed to find the absence of probable cause for the prosecution of the plaintiff by the defendant upon the charge of disposing of crops upon which a lien existed without settling with the lienee, and thereby denied the plaintiff’s alleged cause of action for malicious prosecution, the plaintiff was thereby also denied the right to recover on his alleged cause of action for abuse of process, and for that reason the court erred in failing to instruct the jury not to consider the evidence applicable to the first cause of action in considering the issues as to the second cause of action. This argument is untenable for the reason that while there is a definite distinction between an action for malicious prosecution and an action for abuse of process in that, among other things, in the former want of probable cause is a requisite and not in the latter, the same evidence may be competent on both causes of action.

It appears in his Honor’s charge that “it was agreed by counsel on both sides that I need not review it (the evidence).” However, we are of the opinion that the court stated the evidence with sufficient fullness to enable the court to present every substantial and essential feature of the case, and to declare and explain the law arising thereon. If the defendant desired any fuller explanation on some subordinate feature of the case, or upon some particular phase of the evidence, he should have aptly tendered prayers for special instructions relating thereto. School District v. Alamance County, 211 N. C., 213, 189 S. E., 878.

Viewing the charge as a whole and considering it contextually, we find no prejudicial error therein.

On the oral argument counsel for plaintiff stated that if no error was found on defendant’s appeal, the plaintiff did not care to pursue further his appeal. Accordingly, since we are affirming the judgment below, the appeal of the plaintiff is treated as withdrawn. The judgment of the Superior Court is affirmed.

No error.