Avco Delta Corp. v. Walker

• Decision Date: 09 December 1969
• Citation: 258 N.E.2d 254,22 Ohio App.2d 61
• Parties: , 51 O.O.2d 122 AVCO DELTA CORP. OF OHIO, Appellee, v. WALKER, Appellant.
• Court: Ohio Court of Appeals

Page 61

22 Ohio App.2d 61

258 N.E.2d 254, 51 O.O.2d 122

AVCO DELTA CORP. OF OHIO, Appellee, v. WALKER, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 9, 1969.

Syllabus by the Court

1. At common law the cause of action for 'abuse of process' was essentially different from the cause of action for 'malicious use of process.' The former involved the employment of process in a manner not contemplated by law or to obtain an object which such process was not intended by law to effect. The latter involved the employment of process for its ostensible purpose, but without reasonable or probable cause, and was merely a type of malicious prosecution.

2. A petition alleging facts which would prove only 'malicious use of process,' and not 'abuse of process,' is subject to demurrer as not stating a cause of action, where there is no allegation of the termination of the proceedings allegedly giving rise to such action.

Robert A. Wilcox and Jacob A. Schlosser, Columbus, for appellee.

Buchanan & Fuller, Columbus, for appellant.

LEACH, Judge.

This is an appeal from an order of the Common Pleas Court of Franklin County striking defendant-appellant's amended counterclaim from the files, and retaining the case for trial only on the issues made by the petition and the amended answer. No issue has been raised as to the appealability of such order, and thus we are assuming for the purpose of this decision that such order is appealable, without expressing any opinion as to such question.

In essence this case involves the question whether, while an action on a cognovit note filed by plaintiff against defendant is still pending, defendant may counterclaim asserting an action for damages against plaintiff for having taken cognovit judgment on such note, and, after giving statutory notice, having issued a 'pro-in-aid attachment' on defendant's wages, thus allegedly causing defendant 'embarrassment with her employer and her creditor's and thus having 'slandered her credit and her reputation.'

On the basis of a tendered answer and counterclaim alleging that the note was obtained by 'reason of false representations made to her' by plaintiff 'through its agents,' any by agreement of counsel, the original judgment granted on the cognovit note was vacated by the Franklin County Municipal Court, which also then dismissed the 'pro-in-aid,' ordered the tendered answer and counterclaim filed, and then, ultimately, certified the case to the Common Pleas Court on the basis that the prayer of the counterclaim ($25,000) exceeded the monetary jurisdiction of the Municipal Court.

In the Common Pleas Court a demurrer was then sustained to the counterclaim on the basis that it was an attempt 'to state a cause of action for malicious prosecution predicated upon the instant action,' and that an 'action for malicious prosecution cannot be maintained until the action complained of is terminated.' Here, it should be noted that the essential allegations of the counterclaim, like those of the answer, are based on the allegation of 'false representation' in securing the note.

After the sustaining of the demurrer, an amended answer and counterclaim was filed, which made no essential changes in the claim being made, and, upon the order of the court striking such amended counterclaim, appeal was then taken to this court. We affirm.

In considering this case, we start with the fundamental proposition that in an action for malicious prosecution the person seeking recovery must allege and prove the termination of the proceedings giving rise to such an action and ordinarily must also allege and prove that such proceedings have terminated in favor of the party bringing the action for malicious prosecution. 35 Ohio Jurisprudence 2d 122, 133, 134.

Here, by way of counterclaim, defendant seeks damages for injury to credit and reputation allegedly resulting from the actions taken by plaintiff to obtain judgment on the cognovit note and to effectuate its collection. Essentially, it is alleged that such action was done 'maliciously and willfully' on the basis of claims that plaintiff had obtained such note by means of 'false representations.' The action by plaitiffs to obtain judgment on the cognovit note is pending in court, and to the petition seeking recovery defendant defends on the basis of this same allegation of 'false representations.'

Thus, if the counterclaim be an action for malicious prosecution, it follows that plaintiff must first fail on the merits of its suit on the cognovit note before any action for malicious prosecution could possibly arise in favor of defendant.

Counsel for defendant, however, assert that this is not an action for malicious prosecution but instead is an action for 'abuse of process.' Cited in support of this claim is certain language contained in Prosser, Law of Torts, 3rd Ed., 876, to the effect that 'abuse of process' differs from 'malicious prosecution' and that 'in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable...