dissenting: The facts disclosed by the record in this case, as viewed on a motion for summary judgment, portray a shocking experience for one subjected to Kansas law. To say the judgment debtor is a “dead beat” and brush the case aside is not the proper disposition of this case.
My dissent is confined to the specific claim of Danny R. Porter (plaintiff-appellant) as to abuse of process alleged in his petition.
The statute upon which Stormont-Vail Hospital, through its counsel, relied in the magistrate court is K.S.A. 1973 Supp. 61-2204. The 1979 version of the statute has not changed in any material respects from the 1973 version which governed the proceedings below.
In capsule form my dissent is based upon a failure to comply with 61-2204 in three particulars:
1. After initiating the proceeding in aid of execution, the judgment creditor failed to make application to the magistrate judge for a finding “that it will not cause undue hardship on the judgment debtor . . . residing in another county in this state to appear before said court for such examination.” The magistrate judge was required to order Porter’s appearance only after making a finding of no undue hardship.
2. After the magistrate judge issued his order for Porter to appear and answer concerning his property at a hearing “before such court,” and Porter’s numerous appearances before the court, there was never an examination at a hearing before the magistrate judge to ascertain what property, if any, Porter had to apply on the judgment debt.
3. After the issuance by the magistrate judge of various contempt citations and Porter’s subsequent appearance, either upon arrest or voluntary appearance, there was never a hearing before the magistrate judge on any contempt citation. All contempt proceedings were held in abeyance, after Porter’s *649appearance in court, with the admonition that he appear again at a future date certain.
When this action was finally filed against Stormont-Vail Hospital, all proceedings in aid of execution and contempt were dismissed. The record on the magistrate judge’s docket sheet is incomplete and leaves much to be desired.
Setting forth my reasons in full in the present posture of the case will establish on the part of the judgment creditor: (1) an ulterior purpose; (2) improper acts in the use of the foregoing process, and (3) damage resulting to Porter.
The trial court in ruling on Porter’s claim as to abuse of process simply stated: “The post judgment activities of the defendant were conducted in accordance with the provisions .of Chapter 61 of the Kansas Statutes Annotated and the rules, practices and procedures of the Shawnee County Magistrate Court.” If this is true, the legislature is admonished to take a good look at K.S.A. 1979 Supp. 61-2204. The rules, practices and procedures of the Shawnee County Magistrate Court, of course, cannot go beyond statutory authorization.
The allegations of Porter setting forth his specific claims as to abuse of process are contained in paragraph six of his petition, which is quoted in the trial court’s “Memorandum of Decision and Order” and incorporated in Supreme Court’s opinion.
The established law in an action for malicious abuse of process is accurately set forth in the trial court’s “Memorandum of Decision and Order,” but it was not applied to the facts in this case. See Welch v. Shepherd, 169 Kan. 363, 366, 219 P.2d 444 (1950).
The law as it has developed through the years on proceedings in aid of execution and contempt is found in In re Burrows, 33 Kan. 675, 7 Pac. 148 (1885); Tatlow v. Bacon, 101 Kan. 26, 165 Pac. 835 (1917); and Threadgill v. Beard, 225 Kan. 296, 590 P.2d 1021 (1979). Proceedings in the magistrate court concerning Porter, presently under scrutiny, pervert the law in these cases.
The record discloses that in early 1973 Danny R. Porter entered Stormont-Vail Hospital in Topeka. He received medical services related to a knee operation. Porter subsequently prosecuted a worker’s compensation claim, with the aid of present counsel, Leonard McAnarney. The claim was settled for $2,600. Porter thought the settlement with the worker’s compensation insurance carrier included payment by the insurance company of all medi*650cal bills. The insurance company paid one of the hospital bills, but a bill for $478.18 remained unpaid.
Stormont-Vail made demand upon Porter to pay the bill, then filed suit against Porter in the magistrate court of Shawnee County, in March 1974. The hospital sought payment of the bill plus interest and costs. Porter contends he never received personal notice of the law suit. At all times relevant, Porter resided in Geneseo, Rice County, Kansas, approximately 200 miles from Topeka. Richard Tucker was then sheriff of Rice County, Kansas. In an affidavit, Sheriff Tucker states that he personally served Porter with summons and a copy of the petition in the Shawnee County civil action. Sheriff Tucker failed to sign his name to the sheriff’s return of summons, but nevertheless claims he effected personal service on Porter. Assuming valid service of process, Porter did not file an answer, and a default judgment was entered against Porter on April 24, 1974.
On April 30,1974, the attorney for Stormont-Vail applied to the magistrate court for a proceeding in aid of execution, in order to determine what assets, if any, Porter had available to be applied toward satisfaction of the judgment. The record does not contain the original, or a copy, of the application for examination of the judgment debtor. However, an affidavit of the magistrate judge states that forms No. 12 and No. 13 of the appendix to Chapter 61, authorized by K.S.A. 61-2605, were deemed sufficient to implement the rights of judgment creditors under K.S.A. 61-2204. These forms read:
“Form No. 12: APPLICATION FOR HEARING IN AID OF EXECUTION
(Caption of Case)
APPLICATION FOR EXAMINATION OF JUDGMENT DEBTOR
“-, attorney for_, plaintiff (or defendant), makes application to the court for an order requiring __ -, defendant (or plaintiff) and judgment debtor herein, to appear before this court at a time and place specified to be examined and answer concerning his (her or their) property.
“In support of this application, the undersigned alleges and advises the court that:
“(1) Judgment was entered on_, 19_, in favor of said plaintiff (or defendant) against said defendant (or plaintiff) for the sum of $_and costs.
*651'‘“(3) The judgment creditor is without sufficient knowledge of the judgment debtor’s assets to cause a levy of execution herein.
“o(4) xhe judgment debtor resides outside this county at _ _, but said judgment debtor has submitted to the jurisdiction and venue of this court and that requiring him or her to appear before this court for such examination will not cause undue hardship to said judgment debtor.
(Signature)
Dated_
““(Those portions not relevant to this application should be omitted or deleted.) (Emphasis added.)
“Form No. 13: ORDER FOR HEARING IN AID OF EXECUTION
(Caption of Case)
ORDER TO APPEAR FOR HEARING IN AID OF EXECUTION
“To_, judgment debtor:
“You are hereby ordered to personally appear before this court at-o’clock_M., on the_day of_, 19-, in the courtroom of this court in the courthouse of_County, Kansas, to be examined and answer concerning your property, assets and income.
“This order is directed to you for the reason that judgment was entered against you in the above entitled action and to this date remains unpaid, and unsatisfied.
“Failure to appear at the above time and place may cause you to be cited and punished for contempt of this court.
(Signature), Judge
Dated_
“(There should be added to this order a return showing the manner in which the order was served similar to the return on a summons.)”
There is nothing in the record to indicate the magistrate judge made the statutory finding that to require the judgment debtor who resides in another county to appear before the court in Shawnee County would not cause undue hardship to the judgment debtor. In his affidavit which is part of the record herein the magistrate judge states:
“With respect to implementing the rights of the judgment creditors under K.S.A. 61-2204, the following policies were followed by the Magistrate Court:
“B. The application itself, if in proper form, was regarded as proper cause for issuance of an order for a debtor to appear. Such order issued and the judgment debtor was expected to appear on the date shown in the order unless other evidence presented and a hearing held prior to the appearance date showing undue hardship with respect to a debtor residing in another county, and unless upon such evidence, the court in weighing all the circumstances found that such hardship was in fact undue.”
*652The substance of the foregoing procedure described by the magistrate judge shifts the burden of proof to the judgment debtor, who resides outside Shawnee County, to appear prior to the appearance date and show undue hardship. This procedure ignores the statute (61-2204). A proper interpretation of the statute places the burden of proof upon the judgment creditor. The magistrate judge is required to make a finding of no undue hardship before the order to appear is issued.
The court issued an order for Porter to appear before the court on May 22, 1974. The record does not contain the original, or a copy, of the order to appear for a hearing in aid of execution. As heretofore noted, in the affidavit the magistrate judge states that form No. 13 was used. The record shows Porter was personally served with the order to appear.
Porter did not appear for the hearing on May 22, 1974. As a result of Porter’s failure to appear on May 22, a citation was issued by the court ordering Porter to appear before the court on July 3, 1974, at 11 a.m., to show cause, if any, why he should not be punished for contempt of court. The citation was personally served on Porter, who failed to appear on July 3, 1974. A bench warrant was issued on July 10, 1974, ordering that Porter be arrested and brought before the court and answer the charge of failure to appear.
Porter was arrested on the bench warrant in Rice County. He was transported in handcuffs to Shawnee County where he was jailed. Porter states in his deposition that he was held in jail for three days. The record is not otherwise clear on the length of time Porter was held in jail. Porter was taken before the magistrate court on September 25, 1974, to answer the charge of failure to appear. No hearing was conducted to determine whether Porter was in contempt. Counsel for Stormont-Vail was present, and Porter was interrogated by such counsel about his assets. In his deposition, Porter states that he informed the Stormont-Vail counsel that the hospital bill was a mistake and should have been paid by the worker’s compensation insurance carrier. The matter of contempt was held in abeyance, and Porter was ordered to appear again in two weeks, on October 9, 1974. The record does not disclose whether the order to appear was for the purpose of conducting a hearing in aid of execution, a hearing on the contempt charge, or both.
*653Porter failed to appear on October 9, 1974. A second bench warrant was issued by the magistrate court. The bench warrant was outstanding for almost twenty months. On July 13, 1976, Porter was arrested in Rice County on the bench warrant. He was again transported to Shawnee County by sheriff’s deputies and spent one night in jail.
On July 14, 1976, Porter was taken before the magistrate court. No hearing was conducted on the contempt charge. The matter of contempt was held in abeyance, and Porter was ordered to appear again in one month, on August 11, 1976. In his deposition Porter states he was again examined about his assets by the Stormont-Vail counsel on July 14, 1976. Porter traveled the approximate 200 miles from Geneseo, Kansas, and appeared on August 11,
1976. No hearing was conducted on the contempt charges, and the matter of contempt was again held in abeyance. Stormont-Vail counsel again examined Porter in regard to his assets subject to execution. Porter was ordered to appear again in one month on September 8, 1976.
Porter failed to appear on September 8, 1976, and a bench warrant was issued by the magistrate court. Four months later, in January 1977, Porter was arrested for the third time in Rice County. Porter was permitted to post a $50 bond, and was released from custody upon the condition he appear before the Magistrate Court of Shawnee County, when ordered. There have been no further proceedings against Porter on the judgment since January 1977. The record is not clear, but apparently on March 3, 1977, the bench warrant and citation in contempt were recalled, and the order in aid of execution dismissed.
Porter, prior to the dismissal, filed suit against Stormont-Vail Hospital in January 1977. The civil suit alleged the default judgment against Porter was void and that all actions to collect on that judgment were invalid. Porter alleged Stormont-Vail was guilty of false arrest and imprisonment, malicious prosecution of a civil action, and abuse of process.
In my opinion the trial court properly ruled on all matters in the motion for summary judgment except the allegations charging abuse of process.
The essential elements of an action for malicious abuse of process are (1) the existence of an ulterior purpose, and (2) an act in the use of such process not proper in the regular prosecution of *654the proceeding which results in damage to the plaintiff. Welch v. Shepherd, 169 Kan. at 366.
The record indicates Stormont-Vail Hospital, through counsel, properly sought magistrate court assistance through proceedings in aid of execution. The request was reasonable and legitimate— to discover what assets, if any, Stormont-Vail Hospital could levy against, or require Porter to apply, to satisfy the default judgment.
But the magistrate failed to make the required finding that it would not be a hardship on Porter, residing in Rice County, to appear on a date certain for examination at a hearing before the magistrate judge, to ascertain what assets Porter had, if any, to apply on the debt. The magistrate judge thereafter completely defaulted in honoring the orders he had issued concerning the proceedings in aid of execution and in contempt. No hearing was ever conducted before the magistrate judge pursuant to any of his orders.
The resultant conduct by Stormont-Vail Hospital, through counsel, was a continual harassment and badgering of the judgment debtor, Porter. The harassment continued until Porter filed this action, at which time all proceedings were dismissed.
It cannot be said this was done under the cloak of the court because the court had completely abdicated its statutory duty to function as a court.
Under these circumstances Stormont-Vail, through counsel, in the conduct of proceedings in the magistrate court, ostensibly pursuant to its application for proceedings in aid of execution, stands charged with an ulterior purpose by its incessant harassment of the judgment debtor. The tactics of Stormont-Vail, through counsel, constitute acts in the use of such process which are not proper in the regular statutory prosecution of the proceedings.
The question may be asked whether Stormont-Vail Hospital is the proper defendant in the action.
The record herein must be reviewed under the rules governing a motion for summary judgment as stated in Lawrence v. Deemy, 204 Kan. 299, 301, 461 P.2d 770 (1969):
“Generally before a summary may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a *655dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case. (Knowles v. Klase, 204 Kan. 156, 460 P.2d 444; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019.) The manifest purpose of a summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. (Secrist v. Turley, 196 Kan. 572, 412 P.2d 976.) A court, in making its determination, must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. (Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838; Jamagin v. Ditus, 198 Kan. 413, 424 P.2d 265; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964.)”
Giving Porter the benefit of all inferences that may be drawn from the facts under consideration, Stormont-Vail Hospital is held to be fully aware of, and consented to, the actions of its counsel in prosecuting its application for proceedings in aid of execution.
The Kansas Supreme Court has held where a principal perpetrates a wrong, acting through his agent, the principal is liable for the damage. Thus in Stalker v. Drake, 91 Kan. 142, 136 Pac. 912 (1913), the court held:
“The petition herein interpreted and held to state a cause of action for willful and malicious oppression by the defendant, acting through his agents, in seeking to enforce usurious and unlawful claims against plaintiff, and should not be regarded as one asserting a liability on the ground of the conspiracy of the defendant with his agents as tort-feasors and coconspirators.” (Syl. ¶ 1.)
“Where a party makes an unlawful demand against another and maliciously and oppressively uses the machinery of the courts and the process of the law as well as other measures in an endeavor to enforce the payment of such demand the injured party is entitled to recover the loss and damage resulting from such wrongdoing.” (Syl. f 2.)
“Exemplary damages are not allowable because of any special merit in plaintiff’s case, but are imposed by way of punishing the defendant for an invasion of the plaintiff’s rights in cases characterized by malice, fraud or a willful and wanton disregard of the rights of others, and it is held that the elements justifying the allowance of such damages are present in this case.” (Syl. f 3.)
In the opinion the court stated:
“The argument that a cause of action is not stated in the petition can hardly be seriously made. It certainly states good ground for recovery for both actual and punitive damages, and it would be a reproach upon the law if it did not afford a remedy for the willful and malicious acts of oppression and coercion recited in the petition.” 91 Kan. at 147.
It is generally held that a person who previously consulted his *656attorney, or afterward sanctioned, or at least approved, the act committed by his attorney which constituted an abuse of process, is liable. 1 Am. Jur. 2d, Abuse of Process §§ 17, 19.
For an analogous case involving action by an in-house attorney that resulted in liability to the plaintiffs for both actual and punitive damages see Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976). See also Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 228 Kan. 532, 618 P.2d 1195 (1980).
A lucid discussion of an attorney’s involvement in an action for abuse of process is found in Fite v. Lee, 11 Wash. App. 21, 28-29, 521 P.2d 964 (1974), where the court said:
“Were we to agree that dismissal with prejudice of the client who is without knowledge that her attorney has issued the process on her behalf, is res judicata of the claim against the attorney, we would be required to make two assumptions of doubtful validity: (1) that the attorney-client relationship is an ordinary agency relationship, and (2) that when an attorney does an unlawful act on behalf of his client without the client’s knowledge or consent he has implied authority from the client to do so. We cannot accept such assumptions.
“An attorney in discharging his professional duties acts in a dual capacity. In a limited or restricted sense he is an agent of his client. But he has powers, including those to issue judicial process, far superior to those of an ordinary agent.
“As an officer of the court, his duties are both private and public. Where the duties to his client to afford zealous representation conflict with his duties as an officer of the court to further the administration of justice, the private duty must yield to the public duty. He therefore occupies what might be termed a ‘quasi-judicial office.’ Langen v. Borkowski, 188 Wis. 277, 301, 206 N.W. 181, 190 (1925), 43 A.L.R. 622 (1926); Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947); CPE 32.
“By its very nature, an abuse of legal process by an attorney as defined above violates an attorney’s oath, his canons of ethics, and his duty to the public as an officer of the court. . . .
“Accordingly, the scope of the attorney’s implied authority as an agent should not, as a matter of law, extend to acts which constitute an abuse of legal process. . . .
“It follows then that if an attorney has, without the knowledge or consent of his client, abused process to the damage of another, the attorney acts outside the scope of his agency and the client should not be derivatively liable. See Barton v. Tombari, 120 Wash. 331, 207 P.2d 239 (1922); See Restatement (Second) of Agency § 228 (2) (1958); See Restatement (Second) of Agency § 246, comment b (1958). Consequently dismissal of the action against the client should not be res judicata of the injured party’s claim against the attorneys.” (Emphasis added.)
*657In the present posture of this case the court is not concerned with the implied authority of the attorney to act as an agent for his client.
Counsel for Stormont-Vail Hospital, who was admitted to the Kansas Bar and is an officer of the court, had a duty to uphold his oath to support the Constitution of Kansas and uphold the statute under which Stormont-Vail proceeded to invoke the jurisdiction of the magistrate court. It was counsel’s obligation to see that the magistrate judge did not abdicate responsibility under the orders issued by the court.
The sum and substance of the magistrate judge’s failure to honor his orders resulted in a complete lack of due process. Hearings conducted pursuant to the orders entered by the magistrate judge would have given Porter the opportunity to show his indigency and the undue hardship imposed by the orders to appear monthly. At a proper hearing Porter could show that he had no automobile of his own, was unemployed much of the time, and burdened with automobile problems when he borrowed a friend’s automobile in an attempt to travel to Topeka from Geneseo. Never was Porter found to be in contempt.
Although the remedies of judgment creditors deserve judicial support, the rights of judgment debtors under Kansas law cannot be ignored.
It is respectfully submitted the trial court erred in sustaining the appellee’s motion for summary judgment on the appellant’s allegations in his petition on abuse of process.
Herd, J., joins the foregoing dissent.