Whelan v. Miller

Citations

• 49 Pa. Super. 91
• 1912 Pa. Super. LEXIS 289

Syllabus

<p>Abuse of civil process — Attachment execution — Bank account — Damges.</p> <p>1. In an action to recover damages for an alleged abuse of civil process -where the plaintiff shows that his bank account had been tied up by an attachment execution by the defendant, and that by reason thereof he had been compelled to ask his creditors to wait upon him for the discharge of his indebtedness to them, until the attachment could be raised, the court cannot give binding instructions for the defendant upon the ground that the plaintiff had not been injured.</p> <p>2. Where in such a case it appears that the plaintiff’s name was “John M. Whelan” and that the judgment note on which judgment was entered, and under which the attachment issued was signed by plaintiff’s father, “John Whelan” and that the defendant had added the words after the signature “also known as John M. Whelan” and had issued the attachment against the bank deposit of John M. Whelan, the defendant will not be permitted to assert that the action cannot be maintained because it involved a collateral attack upon the judgment.</p> <p>3. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose for which it is intended by the law to effect. On the other hand, legal process may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it than its proper effect and execution. In the latter case it is necessary to aver and prove that the person using the process has acted not only maliciously, but also without reasonable or probable cause; and in such a case the proceeding must be determined finally before any action lies for the injury. In the case of malicious abuse of process an action will lie before the proceeding has been finally determined. Where the process abused is an attachment execution, and such attachment has been vacated before an action for da