Blair v. Maxbass Security Bank of Maxbass
| Decision Date | 12 December 1919 |
| Docket Number | 1915 |
| Citation | 176 N.W. 98,44 N.D. 12 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of the District Court of Bottineau County, A G. Burr, J.
Judgment reversed.
Reversed and remanded. Appellant entitled to statutory costs and disbursements on appeal.
J. J Weeks, for appellants.
If process, either civil or criminal, is wilfully made use of for a purpose not justified by law, this is an abuse for which an action will not lie. Cooley, Torts, 2d ed. 220; 32 Cyc. 542.
An action based on the abuse of process differs from an action for malicious prosecution in at least two respects: First, in that want of probable cause is not an essential element; and second, that it is not essential that the original proceeding shall have terminated. Kool v. Lee, 134 P. 906; Malone v. Belcher, 216 Mass. 209, Ann. Cas. 1915A, 830; Grimestad v. Lofgren, 105 Minn. 296, 117 N.W. 515.
"A cause of action for malicious abuse of process assumes that the process is regular and legal in form." Smith v. Jones, 16 S.D. 337, 92 N.W. 1084; Nix v. Goodhile, 63 N.W. 701.
W. H. Adams, for respondent.
The defendant mortgagee was entitled, as soon as the plaintiffs failed to pay the mortgage in accordance with its terms, to take into its possession all of its mortgaged property and sell enough to pay it, including costs. James v. Wilson, 8 N.D. 186; Sandager v. Northern P. Elev. Co. 2 N.D. 3; Sanford v. Duluth & D. Elevator Co. 2 N.D. 6; N.D. Comp. Laws, § 8137.
This action is one to recover damages for abuse of process. The plaintiffs pleaded certain facts in their complaint. The defendant interposed an answer.
At the time the case was called for trial, and after the jury were duly sworn, and at the time of the offering and rendering of proof on behalf of the plaintiffs, the defendant objected to the introduction of any evidence, on the ground that the complaint fails to state facts sufficient to constitute a cause of action, in this, that it shows there was an indebtedness existing between plaintiff and defendant; that, at the time of commencement of the action in which it is charged there was a malicious use and abuse of process, such indebtedness was due, and a cause of action did exist; that it shows that the plaintiff in that action, who is the defendant in this action, proceeded by a lawful method, and pursued a lawful remedy, and that it does not show that the defendant in this action, at any time, had possession of the property mentioned in the complaint in this action, and that it contains no specific allegation of damage.
The court sustained the objection. The case is thus presented to this court as if a demurrer had been interposed to the complaint upon the same ground that the evidence to prove the allegations of the complaint was excluded. In other words, if the complaint in this action states facts sufficient to constitute a cause of action, the trial court was in error in excluding evidence offered to prove the facts alleged in the complaint.
For the purpose of determining the legal questions presented, all of the material facts which are well pleaded by the complaint, and in this case they are all well pleaded, must be taken as true. The complaint shows that the plaintiffs were indebted to the defendant, and, to secure that indebtedness, on the 11th day of November, 1914, executed and delivered to defendant a chattel mortgage.
It further shows that, on the 21st day of May, 1915, the plaintiffs executed and delivered to defendant another chattel mortgage. These chattel mortgages were properly and legally filed in the register of deeds' office at Bottineau county, North Dakota, and each covered and described a large amount of personal property consisting of horses, machinery, cattle and oats, and some other property, all of the alleged value of $ 2,500.
The complaint further shows that, on the 8th day of December, 1915, there was due on said indebtedness, and said chattel mortgages to defendant, a sum not to exceed $ 465.64, for which sum defendant held a lien on the property in question. That, on the 8th day of December, 1915, the defendant commenced foreclosure of the chattel mortgages by an action in the district court of Bottineau county, and wrongfully claimed to recover from the plaintiffs, $ 2,137.64, with interest thereon, from the 15th day of October, 1915, and demanded that the mortgages be foreclosed, and the property, therein mentioned, sold, and the proceeds applied to the payment of that sum, together with costs. That, on the 10th day of December, 1915, the defendant caused to be issued by the clerk of the district court of Bottineau county, a warrant of seizure, which required the sheriff of Bottineau county to levy upon and take into his possession, and from the possession of the plaintiffs, all of the said property, which the sheriff did on or about the 14th day of December, 1915. That said property was held and kept by defendant, or under defendant's instructions and directions by the sheriff, until about the 7th day of July, 1916, when it was redelivered to plaintiffs.
The complaint further shows that, in the commencing of that action, and therein demanding the foreclosure of the mortgages for the sum of $ 2,137.64, instead of the sum which was actually due, and known to said defendant to be due at said time, the defendant wilfully and maliciously intended and attempted to pauperize and ruin the plaintiffs financially, and that, at the time of seizure of the property, it was well known to defendant that, on account of the seizure and the destruction of plaintiffs' credit thereby, the plaintiffs would be, and were, unable to rebond and possess themselves of such property during the pendency of the foreclosure action.
That, further, during the time the personal property remained in possession and under the control of defendant, the defendant failed and neglected to furnish sufficient feed and to exercise proper care of the animals described in the mortgage, and wilfully and maliciously, with intent to cause injury and damage to the plaintiffs, allowed the animals to suffer for want of sufficient food and drink and other proper care, so that at the time of the redelivery to plaintiffs, of the animals, they had become very thin in flesh, weak, and depreciated in value to plaintiffs' damage to the extent of $ 600; that, on account of the seizure of the personal property, and the withholding of the same, plaintiffs have been damaged in the loss of the use thereof, in the sum of $ 600.
The complaint further shows that the mortgages provided that the harvested crops, covered by said mortgages, might be sold by the mortgagee in any usual market thereof, at the market price thereof, without notice; that there were 2,000 bushels of oats covered by said mortgage, and which were seized and held by defendant, which had a market value in excess of the amount due on the mortgages, all of which was known to defendant at the time of the seizure; and that he knew that the grain was more than sufficient to pay the indebtedness and knew the same could be sold, under the mortgage, without an action to foreclose; but that the defendant wilfully, unlawfully, and wrongfully commenced the action to foreclose the mortgages, and caused the levy to be made on all of the property, with the intention and purpose to hold the same for a long period of time, and with the intention and purpose of incurring large expense, and holding and caring for the property during the pendency of the action, with the preconceived idea of wasting the property, and to cause plaintiffs great financial loss and to destroy his credit, and...
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