Ledford v. Smith

ClabksoN, J.

We see no error in the judgment of the court below. The charge of the court is not in the record and the presumption of law is that the court below charged the law applicable to the facts. The case was tried in the court below on the theory of “abuse of process.” The law in regard to abuse of process is well settled in this jurisdiction.

In Abernethy v. Burns, 210 N. C., 636 (639), we find: “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 (citing authorities). . . . 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 (citing authorities). . . . Speaking to the subject in Klander v. West, 205 N. C., 524, it was said: ‘In an action for abuse of process it is not *452necessary to show malice, want of probable cause, or termination of tbe action; and two essential elements are tbe existence of an ulterior purpose and an act in tbe use of tbe process not proper in tbe regular prosecution of tbe proceeding. Tbe act must be willful. Carpenter v. Hanes, 167 N. C., 551.’ ”

In abuse of process there are two essential elements: (1) The existence of an ulterior purpose; (2) a willful act in the use of tbe process not proper in tbe regular prosecution of tbe proceeding.

Tbe evidence all indicates that tbe process was used to collect a debt, if any existed, by using tbe criminal law for that purpose. Defendant said be would have plaintiff arrested if be took tbe deed without paying tbe interest. Tbe recorder, on tbe trial, informed tbe defendant that be could still have tbe .deed set aside. Defendant’s attorney made tbe statement, in prosécuting plaintiff on tbe trial in tbe recorder’s court for false pretense, “The reason why they did not sue me, because I didn’t have nothing and said they would get me for false pretense and they could get their money.” In tbe Superior Court tbe charge was changed to larceny. This and other evidence on the trial was sufficient to be submitted to tbe jury on abuse of process. Tbe process, it appears, was a whip to force tbe payment of an alleged indebtedness.

Taking tbe allegations in tbe complaint and tbe evidence adduced on tbe trial, the issue tendered and answered “Yes” will support tbe judgment “Did tbe defendant abuse tbe process of tbe courts by having-plaintiff indicted on 24 June, 1936, as alleged in the complaint?”

Tbe defendant excepted and assigned error to the judgment as follows : “It is thereupon considered, ordered, and adjudged that tbe plaintiff, Earl Ledford, have and recover of tbe defendant, B. A. Smith, the sum of $500.00, with interest thereon until paid, together with the costs of tbe action to be taxed by tbe clerk and execution will issue accordingly, and upon return of execution unsatisfied in whole or in part, execution will issue against tbe person of tbe defendant.” This exception and assignment of error cannot be sustained.

Citing again Klander v. West, 205 N. C., 524 (526), we find it there written: “To justify an execution against the person in an action for malicious prosecution there must be affirmative finding by tbe jury of express or actual malice. Watson v. Hilton, 203 N. C., 574; Harris v. Singletary, 193 N. C., 583; Swain v. Oahey, 190 N. C., 113, 116. In an action for abuse of process it is not necessary to show malice, want of probable cause, or termination of the action; tbe two essential elements are the existence of an ulterior purpose and an act in tbe use of tbe process not proper in tbe regular prosecution of the proceeding. Tbe act must be willful. Carpenter v, Hanes, 167 N. C., 551. In the absence of a finding of express malice or tbe willful abuse of process the *453person of the defendant cannot be taken in execution.” Ledford v. Emerson, 143 N. C., 527; Michael v. Leach, 166 N. C., 223; Foster v. Hyman, 197 N. C., 189; N. C. Code 1935 (Michie), secs. 767, 768.

Article I, sec. 16, of the Constitution of North Carolina, provides “There shall be no imprisonment for debt in this State except in cases for fraud.” This proviso of the Constitution has no application to actions of tort, but is confined to actions arising ex contractu. Long v. McLean, 88 N. C., 3.

In the present case the jury found abuse of process, which was willful according to the allegations of the complaint. A tort action “injury to person or property.” Sec. 768, supra.

For the reasons given, in the judgment of the court below, we find

No error.