Hall v. Hollywood Credit Clothing Company, 2253.
| Decision Date | 26 January 1959 |
| Docket Number | No. 2253.,2253. |
| Citation | 147 A.2d 866 |
| Parties | Eula HALL, Appellant, v. HOLLYWOOD CREDIT CLOTHING COMPANY, Inc., a corporation, Appellee. |
| Court | D.C. Court of Appeals |
Alvin L. Newmyer, Jr., Washington, D. C., for appellee. Mark B. Sandground, Washington, D. C., also entered an appearance for appellee.
Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
Appellant filed a complaint against appellee for "malicious abuse of process." By leave of court she subsequently filed an amended complaint which appellee moved to dismiss for failure to state a cause of action. The trial judge filed a brief memorandum opinion, holding that while the amended complaint may state a cause of action for unlawful attachment, it did not state a cause of action for malicious abuse of process. This appeal is from the judge's order dismissing the amended complaint.
The amended complaint alleged that in 1953 appellee sold certain merchandise to one Harston Hall, who is not otherwise identified in the pleading. Appellant had not purchased this merchandise, nor did her name appear on appellee's account card. Nonetheless, appellee, with full knowledge of these facts, maliciously brought suit against appellant on this, account in 1953; service was had in 1957, and appellant filed an answer. However, when the case came up for trial, she was not informed of the date because of her attorney's illness or absence from the city, and judgment by default was entered against her on ex parte proof. Some six and one-half months later an attachment was levied against appellant's salary. She immediately filed a motion to vacate the judgment and quash the attachment. While this motion was pending, appellee secured a judgment of condemnation and obtained the money held tinder the writ.
About a month later the motion to vacate the judgment and quash the attachment was granted. Despite this, appellee maliciously caused another attachment to issue, and one week's salary was withheld from appellant by her employer. The pleading further alleges that appellee's actions have injured appellant's credit standing, impaired her personnel relations with her employer, and caused her humiliation and shame.
Before ruling on the correctness of the trial court's action in dismissing the amended complaint, we shall first consider a point of procedure. While the present appeal was pending in this court, appellee moved to include the record of the prior suit, alleging that it had proffered the material to the trial court. Over appellant's opposition we granted the motion and ordered that record transmitted to us. Upon a fuller study of the record in the present case, we are persuaded that we cannot consider the file in the prior suit.
It is true that if on the motion to dismiss the complaint, the record in the former case had been presented to the trial judge, he might properly have considered such material and treated the motion as one for summary judgment;1 and in such a situation we also would be entitled to consider the material.2 However, we can find nothing in the present case to support appellee's statement to us that it presented the prior record to the trial judge, or that he considered it. The material was not referred to or included in appellee's written motion to dismiss; it was not alluded to in the judge's memorandum opinion; and it was not mentioned in the statement of proceedings and evidence approved by the trial judge. Accordingly, we will confine our review solely to the complaint lodged in the present case.
In several prior decisions we have had occasion to define the tort of "abuse of process." We have stated that such cause of action exists for the perversion of the court process to accomplish an end which the process was not intended to bring about, or when the process is used to compel the party affected by it to do some collateral thing which he could not legally and regularly be compelled to do.3 The mere issuance of the process is not actionable, no matter what ulterior motive may have...
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...of the charge.’ ” Houlahan v. World Wide Ass'n of Specialty Programs & Schs., 677 F.Supp.2d 195, 199 (quoting Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C.1959)). “Thus, in addition to ulterior motive, one must also allege and prove that there has been a perversion of the j......
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