Edwards v. Jenkins

• Citation: 101 S.E.2d 410,247 N.C. 565
• Decision Date: 10 January 1958
• Docket Number: No. 743,743
• Parties: Bobby EDWARDS, by his next friend, C. E. Edwards, v. Larry JENKINS.
• Court: United States State Supreme Court of North Carolina

Page 410

101 S.E.2d 410

247 N.C. 565

Bobby EDWARDS, by his next friend C. E. Edwards, v. Larry JENKINS.

No. 743

Supreme Court of North Carolina.

Jan. 10, 1958

John D. Xanthos, Burlington, for defendant, appellant.

Long, Ridge, Harris & Walker, Graham, for plaintiff, appellee.

PARKER, Justice.

This is a summary of defendant's further answer and defense and counterclaim:

Defendant is a law abiding citizen, and had been living with his wife and one-year-old daughter at 221 Border Street, Burlington, North Carolina, about one week prior to 6 October 1956. He had been informed of several break-ins, and other riotous conduct, by juveniles in his neighborhood. About 7:30 p. m. on 6 October 1956, he was sitting in his living room, and heard a noise on the back porch of his home, and heard someone turn the doorknob on his back door. He investigated, and returned to his living room. Shortly thereafter he heard a scraping noise along the outside walls of his home, and heard someone tampering with the oil drum. He got his rifle, went outside in the rainy, dark night, heard someone running alongside his house, and fired his rifle in the ground to make the person halt. Any injury suffered by plaintiff was due to his negligent and criminal acts.

The next friend of Bobby Edwards has threatened to kill, and attempted to frighten defendant. He was arrested on a charge of assaulting Bobby Edwards with a deadly weapon, tried on this charge in the Municipal Court of the city of Burlington, and found Not Guilty.

In this action plaintiff had the defendant arrested, and he was held in custody by the Sheriff of Alamance County until he gave bail. That as he was acquitted of assaulting plaintiff in the Municipal Court of the city of Burlington, his arrest in this action was an abuse of process, which arrest and abuse of process has greatly damaged him in his good name and reputation in the amount of $1,000. That his arrest in this civil proceeding was done with the sole purpose of making him submit to the unlawful demands of plaintiff and his father. That plaintiff has always been behind in his studies and has a bad reputation in school and elsewhere.

Wherefore, defendant prays that he recover damages of plaintiff in the sum of $1,000, that plaintiff's written undertaking, as required by G.S. § 1-412, be increased to $1,000, etc.

Plaintiff demurred in writting to defendant's further answer and defense and counterclaim on three grounds: One, in it no facts are alleged which entitle defendant to any recovery against plaintiff; two, it alleges no cause of action against plaintiff, because it appears on its face that the arrest of defendant was under legal process as provided by law in such cases; and three, there is a misjoinder of causes of action in that the counterclaim is not connected with the subject of plaintiff's action.

G.S. § 1-410 provides that a defendant may be arrested in a civil action 'for the recovery of damages on a cause of action not arising out of contract where the action is for wilful, wanton or malicious injury to person * * *.'

Proceeding under this statute plaintiff had the defendant arrested for an alleged wilful, wanton or malicious assault and battery with a rifle on him by the defendant. This Court said in Manufactures and Jobbers Finance Co. v. Lane, 221 N.C. 189, 19 S.E.2d 849, 853: 'There is no abuse of process where it is confined to its regular and legitimate function in relation to the cause of action stated in the complaint. * * * As we have stated, the defendant has alleged that the plaintiff had an ulterior purpose in the institution and prosecution of the original action, but there is no allegation of any act done by the plaintiff which could be classified as abuse of process. Mere adjectival denunciation will not be sufficient. Facts must be alleged upon which the court could determine that the gravamen of his action is of that character.'

'An abuse of process consists in its employment or use for some unlawful purpose, which it was not intended by the law to effect, and amounts to a perversion of it.' Wright v. Harris, 160 N.C. 542, 76 S. E. 489, 490.

'However, the only essential elements of abuse of process are: First, the existence of an ulterior purpose and, second, an act in the use of the process not proper in the regular prosecution of the proceeding.' Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223, 227.

In Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 277, 162 A.L.R. 793, the Court, quoting from 1 Cooley, Torts, 3rd Ed., p. 354, said: 'Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process.'

Defendant in his counterclaim has alleged no...