George v. Leonard

• Decision Date: 05 August 1948
• Docket Number: No. 5748.,5748.
• Citation: 169 F.2d 177
• Parties: GEORGE v. LEONARD et al.
• Court: U.S. Court of Appeals — Fourth Circuit

169 F.2d 177 (1948)

GEORGE v. LEONARD et al.

No. 5748.

Circuit Court of Appeals. Fourth Circuit.

August 5, 1948.

Thomas E. McCutchen and Robert K. Wise, both of Columbia, S. C. (Wise, Whaley & McCutchen, of Columbia, S. C., on the brief), for appellant.

John K. deLoach, of Camden, S. C., and David W. Robinson, of Columbia, S. C., for appellees.

Before PARKER, Circuit Judge, PRETTYMAN, Associate Justice, United States Court of Appeals for the District of Columbia,^* and BARKSDALE, District Judge.

PARKER, Circuit Judge.

This is an appeal from a judgment for defendant on a directed verdict in a case wherein plaintiff asks damages on account of malicious abuse of criminal process. Plaintiff was arrested on a warrant sworn out under the direction of defendant charging breach of trust with fraudulent intent, a felony under the law of South Carolina. After being kept in jail for a few hours, he was released on bail; and, after he had made payment to defendant's representative to cover part of an alleged shortage in the number of turkeys entrusted to his keeping, the prosecution against him was dismissed. He later commenced two actions against defendant, charging malicious abuse of process in one action and malicious prosecution in the other. On the first hearing of these actions, Judge Wyche dismissed both of them, holding that malicious abuse of process did not constitute a cause of action under South Carolina law and that termination of prosecution by agreement of the parties precluded the maintenance of an action for malicious prosecution. These holdings were subsequently reversed and new trials were granted by the judge in both cases, for reasons fully set forth in his opinions reported in George v. Leonard, D.C., 71 F.Supp. 662, and George v. Leonard, D.C., 71 F.Supp. 665.

The cases later came on for hearing before Judge Timmerman, who consolidated them for purposes of trial, and at the end of the testimony directed a verdict for defendant in the abuse of process case on the ground of the insufficiency of the evidence, while holding malicious abuse of process to constitute a cause of action under the law of South Carolina. The jury were unable to agree in the malicious prosecution case and a mistrial was ordered. This appeal was taken from the judgment for defendant in the abuse of process case, the judgment being entered just as though there had been no consolidation of the cases. Under the circumstances, we shall entertain the appeal, which would have been dismissed as fragmentary if the case had been consolidated and the two complaints treated as separate counts of one complaint, as might well have been done. See Bowles v. Commercial Casualty Ins. Co., 4 Cir., 107 F.2d 169 and cases there cited.

The question raised before Judge Wyche is again raised here, viz., whether malicious abuse of process constitutes a cause...