Clikos v. Long, 6 Div. 743

• Decision Date: 16 January 1936
• Docket Number: 6 Div. 743
• Parties: CLIKOS v. LONG.
• Court: Alabama Supreme Court

165 So. 394

231 Ala. 424

CLIKOS v. LONG.

6 Div. 743

Supreme Court of Alabama

January 16, 1936

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for abuse of process by J.W. Long against M Clikos. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Complaint alleging that defendant had sued out writ of attachment in excess of amount due and caused levy of attachment upon property in excess of amount of debt held demurrable as uniting two separate causes of action in one count.

Count 2 of the complaint is as follows: "Plaintiff claims of the defendant the sum of Ten Thousand Dollars ($10,000.00) as damages for that heretofore on to-wit: November 3d or 4th 1932, the defendant filed suit in the Jefferson County Court of Common Claims against the plaintiff, claiming three hundred and twenty-five dollars ($325.00) with interest, and did on said date cause a writ of attachment to issue out of said court and did cause plaintiff's property, consisting of a stock of goods and fixtures located at 3914 10th Avenue North, Birmingham, Jefferson County, Alabama, to be attached under a writ issuing out of said Court. Plaintiff avers that at said time he was operating a small grocery store at address known as 3914 10th Avenue North, and plaintiff avers that he at said time owed the defendant thirty dollars ($30.00). Plaintiff avers that under and by virtue of said attachment of all his stock of goods, his fixtures, supplies and equipment used in and about his business were attached under and by virtue of said writ. Plaintiff avers that the goods, equipment and supplies attached were of a value far in excess of the amount of the debt owed by plaintiff to defendant at said time, and plaintiff avers that the said attachment was excessive and oppressive and was a wrongful and vexatious abuse of a legal process in that the property attached was sufficient in value to pay the debt of thirty dollars several times. Plaintiff avers that the said property attached was worth to-wit: two thousand dollars ($2,000.00). Plaintiff avers that the defendant did wantonly and maliciously cause an excessive amount of property to be attached and did wantonly injure the plaintiff, and plaintiff avers that the defendant knew, or should have known, that plaintiff was only indebted to him in the sum of thirty dollars ($30.00), and plaintiff avers that as a proximate result of the said wanton abuse of legal process he has been damaged as follows, to-wit: he was caused to lose his stock of goods; his equipment and supplies; he was driven out of business; he was caused to be out of a job or employment; he was caused to be ejected from the said premises which he was renting from the defendant; he was harassed and annoyed, and otherwise greatly and permanently injured and damaged, hence this suit, and plaintiff claims punitive damages."

Morrow & Longshore, of Birmingham, for appellant.

Hugh A. Locke and Frank M. James, both of Birmingham, for appellee.

GARDNER Justice.

Count 2, upon which, for the plaintiff, the cause was tried, seeks damages as for an abuse of process, as distinguished from the action of malicious prosecution; the chief distinction being that the former rests upon the improper use of a regularly issued process, while the latter has reference to the wrong in the issuance thereof. Brown v. Master, 104 Ala. 451, 16 So. 443; Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986, 988; McCarty v. Williams, 212 Ala. 232, 102 So. 133; Brock v. Berry, 132 Ala. 95, 31 So. 517, 90 Am.St.Rep. 896; 38 Corpus Juris, 384; 50 Corpus Juris, 612; 1 Cooley on Torts (4th Ed.) § 131; 1 R.C.L. pp. 102, 103; Italian Star Line v. United States Shipping Board Emergency Fleet Corporation (C.C.A.) 53 F.(2d) 359, 80 A.L.R. 576, and note; Glidewell v. Murray-Lacy & Co., 124 Va. 563, 98 S.E. 665, 4 A.L.R. 225, and note; Cary Brick Co. v. Tilton (C.C.A.) 208 F. 497, 500; Williams v. Eastman, 208 Mass. 579, 95 N.E. 401; Shaw v. Fulton, 266 Mass. 189, 165 N.E. 26; Tamblyn v. Johnston (C.C.A.) 126 F. 267; Blair v. Maxbass Security Bank, 44 N.D. 12, 176 N.W. 98.

Our rule of pleading does not sanction uniting two separate and distinct tort actions in the same count (Hughes' Case [Iron City Min. Co. v. Hughes], 144 Ala. 608, 42 So. 39; Highland Ave. & Belt R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274, 275; Birmingham Ry., L. & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Sloss-Sheffield Steel & Iron Co. v. Smith, 166 Ala. 437, 52 So. 38; Moss v. Winston, 223 Ala. 515, 137 So. 303); and defendant insists that the demurrer taking this point should have been sustained. The argument is that plaintiff has attempted to state a cause for abuse of process based upon the suing out of an attachment for an amount greatly in excess of the debt, and also in the levy of the attachment upon property largely in excess in value of the debt, each of which may constitute a cause of action. 1 Cooley on Torts, § 131; Dickerson v. Schwabacher, supra; Tamblyn v. Johnston, supra; Blair v. Maxbass Security Bank, supra; Brown v. Master, supra.

We consider the complaint is so to be construed, and as such was subject to the demurrer interposed.

Counsel for plaintiff insist that averments as to the claim of an excessive sum due are to be considered merely by way of inducement, and that the gist of the action is the excessive levy.

We have stated our construction to the contrary. But the argument for plaintiff, in the light of the averments of the count, all tend to show that, in any event, the count was objectionable in that it lacks perspicuity and certainty. Defendant had the right to be informed of the particular cause of action for which he is sought to be held liable on this count. Nicholas Case, supra. But, accepting plaintiff's theory, we think still the count was subject to objection. Claiming the sum of $325 as due, when the correct amount was only $30, is one matter, and the levy by the officer upon property of the value of $2,000 to satisfy either of said sums is another and different transaction. In having an attachment writ to satisfy $325, plaintiff in the attachment suit may presume the officer in whose hands the writ is placed for levy will take no action not authorized by its terms. Brock v. Berry, supra. Presumably all that plaintiff in that action did was to place the writ in the hands of the officer.

The officer in making the levy exercises a discretion, and, if he acts in good faith, though mistakenly to the prejudice of the debtor, there is no liability for an abuse of process. Williams v. Eastman, supra. "To charge him with damages, he must be shown to have acted maliciously and without an honest belief that the property taken would bring at a sheriff's sale no more than was reasonably necessary to satisfy the ad damnum in the writ." Cary Brick Co. v. Tilton, supra.

Clearly this defendant could not be held to liability unless the officer was likewise guilty of an abuse of process. There is no averment that the officer either knew the property attached was of greater value than was reasonably necessary to satisfy the writ or that he did not honestly so believe. Cary Brick Co. v. Tilton, supra. Nor is there any averment to show this defendant in any manner participated in the levy by the officer or was present or had knowledge thereof. As said in Brock v. Berry, 132 Ala. 95, 101, 31 So. 517, 518, 90 Am.St.Rep. 896:

"When *** the plaintiff neither indemnifies the officer, nor directs the doing of the act or acts for which the officer is subsequently subjected to liability, the plaintiff cannot be held answerable."

The mere statement that this defendant "caused such excessive levy" does not suffice to supply this deficiency, as, construing the pleading most strongly against the pleader, the proper inference is that it was so caused by the issuance of the attachment writ, and thus starting in motion the machinery which culminated in the levy. Such construction would therefore lay emphasis, not upon the excessive levy, but upon the excessive claim in the procurement of the writ, and the subsequent damage as a result thereof.

There is here not one transaction, as in American Ry. Express Co. v. Summers, 208 Ala. 531, 94 So. 737, and Blair v. Maxbass Security Bank, supra, cited by plaintiff, but two separate transactions, with one of which (the excessive levy) this defendant is not shown to have been connected. And, as we read the case of Brown v. Master, 104 Ala. 451, 16 So. 443, 444, the attachment plaintiff was charged with actual participation in the levy when made.

Nor is the count sufficient as one resting upon the procurement of the writ upon an excessive claim of indebtedness. The averment is that the defendant knew, or should have known, that plaintiff owed him only $30, and must be considered in the light of the latter alternative "should have known," which signifies an element of negligence in not ascertaining the correct amount, though the plaintiff in the action may have acted in perfect good faith.

Upon the question as to whether or not malice is an essential element of an action for abuse of process, the authorities are in conflict. 38 Corpus Juris, 385; 50 Corpus Juris, 618; 1 R.C.L. 104.

But when we consider that one guilty of a wrongful act done intentionally, without legal justification or excuse, is guilty of a malicious act in the eye of the law (Tamblyn v. Johnston, supra), or, as otherwise expressed (Brown v. Master, supra), that "whatever is done...