Davis v. Boyle Bros.

• Decision Date: 18 May 1950
• Docket Number: No. 908.,908.
• Citation: 73 A.2d 517
• Parties: DAVIS v. BOYLE BROS., Inc.
• Court: D.C. Court of Appeals

73 A.2d 517

DAVIS v. BOYLE BROS., Inc.

No. 908.

Municipal Court of Appeals for the District of Columbia.

Argued April 10, 1950.

Decided May 18, 1950.

John D. Fauntleroy, Washington, D. C., Everett L. Edmond, Washington, D. C., for appellant.

Mark P. Friedlander, Washington, D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CLAGETT, Associate Judge.

This is an appeal in an action for abuse of civil process wherein summary judgment was granted in favor of defendant.

The case was originally filed in the United States District Court for the District of Columbia. After denying defendant's motion to dismiss the complaint (urged on grounds not stated in the papers before us) that court under its statutory authority¹ transferred the case to the Municipal Court "for trial thereof, without prejudice." The Municipal Court, after considering the complaint and conflicting affidavits of plaintiff and defendant, granted, with leave to amend the complaint, a motion for summary judgment. From the resulting judgment in favor of defendant, plaintiff, Geneva E. Davis, appeals.

In the complaint and plaintiff's supporting affidavit the following facts are recited: Defendant corporation, without probable cause, previously filed an action in the Small Claims Branch of the Municipal Court wherein it was alleged that present plaintiff was indebted to present defendant for merchandise purchased at defendant's store. In that complaint present plaintiff was described as "Louise Davis, also known as Geneva Davis."

A United States deputy marshal attempted to serve present plaintiff at her office address where she was engaged in business as a partner in a firm of public accountants. In the presence of her employees and clients the deputy marshal asked for plaintiff as "Louise Davis or Geneva Davis." The plaintiff not being present on that day, the deputy marshal returned at a subsequent time and effected service in a similar manner. She had never before visited the store of present defendant, nor had she ever authorized anyone to pledge her credit, nor had she ever used an alias such as Louise Davis. After being served with process in the Small Claims action, she visited the store and informed an employee of defendant that a mistake in identity had been made. After some conversation, this employee acknowledged the mistake and promised present plaintiff that the Small Claims suit would be dismissed. Relying on these assurances, she did not appear to defend the Small Claims suit, whereupon defendant took judgment against her. Subsequently she filed a motion in the Small Claims Court reciting the above facts and alleging that the judgment against her had been taken fraudulently and that such judgment might be used to embarrass her social and professional standing in the community. The motion to set aside the default judgment was granted. Present defendant had the case continued and a trial on the merits was had, but defendant was unable to prove its case and thereupon took a voluntary nonsuit in the Small Claims action. Plaintiff alleged further that she had been humiliated, embarrassed and belittled before her employees and clients, had been forced to employ counsel to have the default judgment set aside and to defend at the subsequent trial, and that the abuse of process had been wrongful and reckless.

Plaintiff makes two assignments of error, the first that the trial court erred in entertaining defendant's motion for summary judgment after the previous motion to dismiss had been denied by the United States District Court. We do not agree with this contention.

The applicable statute, Code 1940, Supp. VII, 11-756(a), providing for the transfer of certain cases from the District Court to the Municipal Court reads in part: "The pleadings in such action, together with a copy of the docket entries and of any orders theretofore entered therein, shall be sent to the clerk of the said Municipal Court, together with the deposit for costs, and the case shall be called for trial in that court promptly thereafter; and shall thereafter be treated as though it had been filed originally in the said Municipal Court, except that the jurisdiction of that court shall extend to the amount claimed in such action, even though it exceed the sum of $3,000."

In this jurisdiction it requires a final judgment to sustain the application of the rule of the law of the case.² Here the District Court's order was interlocutory. Furthermore, it is clear that the procedural rights and duties of these litigants were governed by Municipal Court rules from the time of filing of the case in that court. Municipal Court rule 51(b) provides that the defending party may move for summary judgment at any time. Defendant's motion for summary judgment, therefore, supported as it was by an affidavit, was different from the motion to dismiss in the District Court and the Municipal Court judge had the right and duty to consider and decide such motion.

Plaintiff's second assignment is that the trial court was wrong in granting defendant's motion for summary judgment. We have concluded that this was error.

Suits for abuse of civil process, under some circumstances called suits for malicious prosecution, have been the subject of innumerable decisions in various jurisdictions. According to 150 A.L.R. 899, "In what is at least a numerical majority of the jurisdictions, it has been held that an action of malicious prosecution will lie for the institution of a civil action maliciously and without probable cause, even though there has been no interference with the person or property of the defendant in the original suit and no special injury is shown." The law in this jurisdiction, however, has been established by three decisions of the United States Court of Appeals for the District of Columbia Circuit. Although some doubt upon the prevalence of the rule elsewhere was indicated in a later decision, the Court in Peckham v. Union Finance Co., 60 App.D.C. 104, 105, 48 F.2d 1016, 1017, held: "In our opinion the greater weight of authority in this country and the better reasoning support the view that no action will lie for the recovery of damages sustained by the prosecution of a civil action with malice, and without probable cause, when there has been no arrest of the person or seizure of the property of the defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action."

In Melvin v. Pence, 76 U.S.App. D.C. 154, 157, 130 F.2d 423, 426, 143 A.L.

R. 149, the holding of Peckham v. Union Finance Co. was cited with approval, but it was also decided that "When malice motivates a groundless claim and results in special injury beyond what assertion of rights ordinarily entails, remedy is afforded. The right to litigate is not the right to become a nuisance. When the proceeding has no relation to protection of any right of the suitor or any public right which he reasonably may have a hand in vindicating, the reason for his protection fails and he must respond."

In Soffos v. Eaton, 80 U.S.App.D.C. 306, 307, 152 F.2d...