Beede v. Nides Finance Corporation
| Decision Date | 07 February 1941 |
| Docket Number | No. 32481.,32481. |
| Citation | 209 Minn. 354,296 N.W. 413 |
| Parties | BEEDE v. NIDES FINANCE CORPORATION et al. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of Duluth, St. Louis County; Richard M. Funck, Judge.
Action by F. D. Beede against the Nides Finance Corporation and others, to recover damages alleged to have been caused by the wrongful causing of a levy under execution to be made on the plaintiff's automobile. Plaintiff had a verdict, but the court granted defendants' motion for judgment notwithstanding the verdict, and the plaintiff appeals.
Reversed.
Henry G. Middaugh and Arthur R. Smythe, both of Duluth, for appellant.
Benjamin W. Pass, of Duluth, for respondents.
Plaintiff sues to recover damages alleged to have been caused by defendants' wrongfully causing a levy under execution to be made on his automobile, a 1939 Ford Tudor. The corporate defendant was the execution creditor, and the individual defendants were its officers and agents who acting in its behalf directed and caused the acts to be done of which complaint is made. The sheriff, who made the levy, was not joined as a defendant.
The execution was issued on a default judgment in favor of the corporation against the plaintiff in an action to recover the unpaid purchase price of another automobile. There was an affidavit of personal service and of plaintiff's default. After the levy was made plaintiff moved to vacate the judgment and levy and set aside the service upon the ground that the summons was not served upon him. The affidavits used on the hearing of the motion have not been returned to us. The court found that service had not been made, set aside the service, and dismissed the action for want of jurisdiction. On the trial below plaintiff denied that there had been personal service. The wife denied that residence service had been made. Defendants admitted in effect that no personal service was made. Instead, they claimed that residence service had been made. One of the corporate defendant's employes, the defendant Finseth, testified that the summons was served upon plaintiff by leaving a copy at his house of usual abode with his wife, a person then residing therein.
Pursuant to stipulation, plaintiff's automobile was delivered to his attorney pending the decision on the motion to vacate.
The complaint abounds in allegations of malice and abuse of process. The case was tried upon the theory that the action in which the judgment was rendered was maliciously prosecuted and that the wrongful levy was an abuse of process. The issue of malicious prosecution, as well as the others, was submitted to the jury. Plaintiff had a verdict.
The court granted defendants' motion for judgment notwithstanding the verdict upon the grounds that an action for malicious prosecution will not lie unless there has been a termination of the action on the merits favorable to the plaintiff and that there was no such termination of the action here since it was dismissed solely upon jurisdictional grounds. Plaintiff appeals from the order. The only question here is whether the order granting judgment notwithstanding the verdict was correct as a matter of law.
No person has the right to interfere with the property of another without his consent except under legal process. Such process can be issued only under a valid judgment. A valid judgment cannot be rendered against a party without due service of process upon him. A judgment entered...
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