Briskin v. Briskin Mfg. Co.
| Decision Date | 15 September 1969 |
| Docket Number | Gen. No. 53308 |
| Citation | 252 N.E.2d 678,114 Ill.App.2d 410 |
| Parties | June BRISKIN, Petitioner, v. BRISKIN MANUFACTURING COMPANY, an Illinois Corporation, Lester I. Briskin andElmer Kaplan, Defendants. BRISKIN MANUFACTURING COMPANY, an Illinois corporation, Lester I. Briskin andElmer Kaplan, Counterplaintiff-Appellants, v. June BRISKIN, Counterdefendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Russell J. Topper, Paul Freeman, Chicago, for appellants.
Ruskin & Rosenbaum, Chicago, Harry H. Ruskin, Martin L. Bogot, Chicago, of counsel, for appellee.
Defendants appeal from an order sustaining petitioner's amended motion to strike and dismiss the defendants' counterclaim. Petitioner, June Briskin, sought a weit of mandamus directed to Briskin Manufacturing Company, an Illinois corporation, Lester I. Briskin, its president, and Elmer Kaplan, its secretary, to permit petitioner to examine books and records of accounts, minutes and records of shareholders of said corporation and to recover from each of the three defendants, a penalty equal to ten per cent of the value of the petitioner's shares, provided by Section 157.45 of Chapter 32 of the Illinois Revised Statutes (1967). All of the defendants answered the petition for the writ and as part of the answer, defendants Briskin Manufacturing Company and Lester I. Briskin, individually, and as officer and director of said company, filed a counterclaim seeking $100,000.00 as compensatory and exemplary damages from petitioner, with costs and expenses including attorney fees, pursuant to Section 41 of the Civil Practice Act, Ill.Rev.Stat.1967, c. 110, § 41.
The counterclaim was based on the ground that the petitioner unlawfully misused and maliciously abused the judicial processes. She was charged with exposing the company and the Briskins to the instant mandamus suit and other judicial proceedings in various courts. The counterplaintiffs further charged that the purpose of the mandamus suit was to harass and coerce them into purchasing petitioner's shares of stock in the Briskin Company.
Petitioner, June Briskin, moved to strike and dismiss the counterclaim because it introduced matters not germane to the petition for mandamus, that it failed to state a cause of action and that the various legal proceedings allegedly commenced by the petitioner were released.
In support of her motion Petitioner's attorney attached his affidavit which stated that he advised her that she had an independent right to attack the validity of a trust created by her deceased husband prior to their marriage as a fraud on her marital rights; that she then presented a petition to be dismissed in her individual capacity from the suit brought by the executor of her husband's estate so that she would not be bound by the proceedings therein and that thereafter she filed an independent action in her individual capacity against Lester I. Briskin attacking the validity of said trust. This was the only suit or other proceeding brought by her in her individual capacity. His affidavit further stated that the intervening petition against the executor and its attorneys and the appeal to the First District of the Appellate Court were filed by her as guardian of her child and her action therewith was approved by the probate Division of the Circuit Court. Said affidavit concluded that the various legal proceedings involving the petitioner, June Briskin, were concluded after pre-trial conferences and settlement negotiations by a decree of court.
Defendants-appellants contend that the counterclaim stated a cause of action in malicious use or abuse of process either for the many causes unsuccessfully prosecuted without probable cause or for the 'special injury' or 'special injustice' inflicted by such defeated actions based on false charges of fraud, conspiracy and illegalities against them. In Ammons v. Jet Credit Sales, Inc., 34 Ill.App.2d 456, 181 N.E.2d 601 (1962), it was stated:
'In civil cases where actions for malicious prosecution do lie, one of the essentials which must be established is the legal...
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Nugent v. Riemore Nugent Collins
...or the estate of John A. Nugent. (See Cohen v. Schlossberg (1958), 17 Ill.App.2d 320, 327, 150 N.E.2d 218; Briskin v. Briskin Mfg. Co. (1969), 114 Ill.App.2d 410, 414, 252 N.E.2d 678.) The trial court acted with complete legal propriety in striking the affirmative For these reasons the judg......