Former opinion reversed and judgment affirmed March 27, 1917.
On Rehearing.
(163 Pac. 975.)
The opinion heretofore rendered in this cause set aside and judgment below affirmed. Affirmed.
Mr. C. M. White, for respondents.
Mr. Allan B. Joy and Messrs. Logan & Smith, for appellant.
In Banc.
Mr. Justice Mooredelivered the opinion of the court.
A rehearing herein having been granted it was maintained that if the averments of the complaint be construed as stating facts constituting an abuse of process, the right to the relief sought arose when the plaintiff was imprisoned, and as the action was not commenced within two years from that time the statute of limitations had fully run, and this being so, an error was committed in reversing the judgment.
13. In an action for malicious prosecution it is necessary to aver and prove that the suit out of which the *425alleged illegal imprisonment arose has completely terminated in favor of the plaintiff, or.that it has been abandoned by the defendant: Chapin, Torts, 489; 1 Cooley, Torts (3 ed.), 339; Merriman v. Morgan, 7 Or. 68; Brown v. Randall, 36 Conn. 56 (4 Am. Rep. 35); O’Brien v. Barry, 106 Mass. 300 (8 Am. Rep. 329); Cardival v. Smith, 109 Mass. 158 (12 Am. Rep. 682); Graves v. Dawson, 130 Mass. 78 (39 Am. Rep. 429).
14. In an action for a malicious abuse of process, however, it is not essential to aver or show that the action pursuant to which the process was issued has terminated: Chapin, Torts, 495; 1 Cooley, Torts (3 ed.), 356; 13 Ency. Pl. & Pr. 452; 2 Greenleaf Ev. (14 ed.), § 452; Pittsburg etc. R. Co. v. Wakefield Hardware Co., 138 N. C. 174 (50 S. E. 571, 3 Ann. Cas. 720); Malone v. Belcher, 216 Mass. 209 (103 N. E. 637, Ann. Cas. 1915A, 830, 49 L. R. A. (N. S.) 753); Pope v. Pollock, 46 Ohio St. 367 (21 N. E. 356, 15 Am. St. Rep. 608, 4 L. R. A. 255, n. 256); Antcliff v. Jones, 81 Mich. 477 (45 N. W. 1019, 21 Am. St. Rep. 533, 10 L. R. A. 621); Zinn v. Rice, 154 Mass. 1 (27 N. E. 772, 12 L. R. A. 288); Rothchild v. Meyers, 18 Ill. App. 284; Page v. Cushing, 38 Me. 523; White v. Apsley Rubber Co., 181 Mass. 339 (63 N. E. 885); Dishaw v. Wadleigh, 15 N. Y. App. Div. 205 (44 N. Y. Supp. 207); Sneeden v. Harris, 109 N. C. 349 (13 S. E. 920, 14 L. R. A. 389).
15. The distinction between an action for false imprisonment and one for the malicious abuse of process in respect to the statute of limitations is that as to the former the time so prescribed does not begin to run until the prior action, pursuant to which the process was issued, has finally terminated in plaintiff’s favor, while as to the latter the cause of action arises when the plaintiff is apprehended under a valid writ for some collateral purpose.
*42616. From a statement of these legal principles it must follow that when damages are undertaken to be recovered for a malicious abuse of process, though a cause of action arises when a plaintiff is unlawfully restrained of his liberty, each day’s imprisonment necessarily augments the indemnity to which he is justly entitled, so that if any part of the incarceration be included within the two years prior to the commencement of the action for the recovery of damages, the statute of limitations has not run as against that period.
The complaint herein charges that the plaintiff was immured in jail from February 15,1913, to March 24th of that year. This action was commenced February 23,1915, on which day the summons and a copy of the complaint were personally served upon the defendant C. M. White. Each of the other defendants was served in like manner March 9, 1915. The time under the statute of limitations thus remaining, giving to the computation the most liberal construction possible by excluding the first day and including the last, leaves 29 days as against the defendant White and 15 as to the other defendants. For these respective periods of time the statute of limitations had not run against the plaintiff’s right of action, considering that the complaint herein charges a malicious abuse of process.
17. Examining the sufficiency of the complaint reference will be made to the statute regulating the enforcement of a judgment.
“The party in whose favor a judgment is given, which requires the payment of money * * may at any time after the entry thereof have a writ of execution issued for its enforcement”: Section 213, L. O. L.
“There shall be three kinds of executions: One against the property of the judgment debtor, another against his person, and the third for the delivery of *427the possession of real or personal property”: Section 214, L. O. L.
“The writ of execution shall be issued'by the clerk and directed to the sheriff. It shall contain the name of the court, the names of the parties to the action, and the title thereof; it shall substantially describe the judgment, and if it be for money, shall state the amount actually due thereon, and shall require the sheriff substantially as follows: # * 3. If it be against the person of the judgment debtor, it shall require the sheriff to arrest such debtor and commit him to the jail of the county until he shall pay the judgment, with interest, or be discharged according to law”: Section 215, L. 0. L.
“If the action be one in which the defendant might have been arrested, as provided by section 259, an execution against the person of the judgment debtor may be issued to any county within the state after the return of the execution against his property, unsatisfied in whole or in part, as follows: 1. When it appears from the record that the cause of action is also a cause of arrest, as prescribed in section 259, such execution may issue of course. 2. When no such cause of arrest appears from the record, such execution may issue for any of the causes prescribed in section 259, that may exist at the time of the application therefor, upon leave of the court or judge thereof. 3. When the defendant has been provisionally arrested in the action, or an order has been made allowing such arrest, and in either case the order has not been vacated, such execution may issue of course. 4. When execution is issued against the person of the defendant by leave of the court, it shall be applied for and allowed in the manner provided in section 260, for allowing a writ of arrest, except that the undertaking need not be for an amount exceeding the judgment”: Section 218, L. O. L.
“No person shall be arrested in an action at law, except as provided in this section. The defendant may be arrested in the following cases: * * 4. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is *428brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought”: Section 259, L. O. L.
“The mode of proceeding to obtain the arrest of the defendant for any of the causes specified in section 259, shall be as provided in this section: 1. At any time after the commencement of an action at law, and before judgment, the plaintiff in such action shall be entitled to a writ of arrest for such defendant whenever he shall make and file with the clerk of the court in which such action is commenced, or is at the time pending, an affidavit that the plaintiff has a sufficient cause of action therein, and that the case is one of those mentioned in section 259; and shall also make and file with such clerk an undertaking, with one or more sureties, in a sum not less than $100, and equal to the amount for which plaintiff prays judgment”: Section 260, L. O. L.
The complaint charges in effect that there was rendered against the plaintiff and in favor of the defendant Ball a judgment in which his attorneys were financially interested, and that they and the other defendant acting jointly and illegally for the wrongful purpose of extorting money from the plaintiff, “and without any order or leave of the above court or judge thereof in the premises, did wrongfully, unlawfully, and maliciously” cause to be issued on such judgment an execution, pursuant to which command the plaintiff was imprisoned, etc. Prom this averment it will be seen that the incarceration occurred after the judgment was rendered against the plaintiff, and could not have resulted from an enforcement of the provisional remedy provided by Section 259, L. O. L. “Leave of court or judge thereof” is not required when it appears from the record that the cause of action is also a cause of arrest as prescribed in Section 259, in which case an execution may issue of course: Section 218, subd. 1, L. O. L. The complaint herein neither directly *429nor inferentially charges that the cause of action wherein the money judgment was rendered against the plaintiff and in favor of the defendant Ball was not also a cause of arrest. Having failed to negative that fact the initiatory pleading herein did not state facts sufficient to constitute a cause of action.
The parts of the former opinion so far as they relate to a reversal of the judgment and to the writer’s views in respect to the cases of Ruble v. Coyote G. & S. M. Co., 10 Or. 39, and Mitchell v. Silver Lake Lodge, 29 Or. 294 (45 Pac. 798), are set aside. The statute of limitations which was the chief question argued at the rehearing has been considered in view of any future action which the plaintiff’s counsel may pursue in this cause. It follows that the judgment is affirmed.
Affirmed.