Layton v. Chase, 10260

• Decision Date: 11 August 1966
• Docket Number: No. 10260,10260
• Citation: 82 S.D. 270,144 N.W.2d 561
• Parties: Jean LAYTON, Plaintiff and Respondent, v. Art CHASE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 561

144 N.W.2d 561

82 S.D. 270

Jean LAYTON, Plaintiff and Respondent, v. Art CHASE, Defendant and Appellant.

No. 10260.

Supreme Court of South Dakota.

Aug. 11, 1966.

William H. Coacher, Sturgis, for defendant and appellant.

Robert La Fleur, Rapid City, for plaintiff and respondent.

HANSON, Judge.

In this action for abuse of legal process plaintiff, Jean Layton, was awarded a verdict of $500 compensatory and $3,500 exemplary damages. Defendant appeals from the judgment.

Viewing the evidence in the light most favorable to plaintiff it appears that on May 17, 1963 she and her husband, Harvey Layton, moved their trailer house into a trailer court in Rapid City owned and operated by defendant, Art Chase. The Laytons had seven children. Their youngest child was born in October 1963 and except for this period Mrs. Layton was steadily employed as a waitress.

Harvey Layton had a liquor problem and only worked periodically. Sometime after moving into the Chase trailer court Mr. Layton rented a tractor from defendant to dig a basement. Defendant had to get the tractor from the job site as it was never returned. Although there is some dispute as to the amount defendant charged Layton for 7 days tractor rental at $25 per day for a total amount of $175. No part of this rental was ever paid.

In the summer of 1963 plaintiff applied for Aid to Dependent Children and was informed she would either have to divorce her husband or have him committed to an institution before being eligible to receive aid. He was committed to the Ft. Meade Veteran's Hospital for acute alcoholism about August 1, 1963, but apparently was able to return home from time to time on trial visits. In September plaintiff received her first ADC check in the amount of approximately $240.

On November 13, 1963, the Laytons moved from defendant's court. At the time they owned trailer space rental in the amount of $20. Plaintiff testified she offered to pay the $20 trailer rental, but defendant refused to accept it. According to her defendant demanded $75 more for tractor rental and said unless this money was paid the trailer could not be moved. Defendant offered to accept $75 in full settlement of both accounts. However, after some conversation the trailer was moved and nothing whatever was paid.

On November 20, 1963 defendant, Art Chase, directed his attorney, Iva T. Mount, to start action against defendants. Accordingly a garnishment affidavit and summons were prepared. Printed forms were used and the blank lines filled in. They were then served on Jean Layton, and the American National Bank of Rapid City, as garnishee defendant. Harvey Layton was out of the state and the garnishment papers were never served on him. However, the garnishment action was entitled 'Art Chase, Plaintiff, VS Harvey Layton and Jean Layton, Defendants, and The American National Bank of Rapid City, S. Dak. Garnishee'. The pertinent part of the affidavit is in the following form: 'Art Chase, being first duly sworn, deposes and say that _ _he is _ _ the plaintiff _ _ in the above entitled action; that the amount of the claim sued upon in said action to recover damages founded upon contract, express or implied, and for which the above named defendant is indebted to the plaintiff _ _ is $195.00 as follows: For rental for trailer space between the dates of July 20, 1962, and October 17, 1963, all at the special instance and request of said defendants. And tractor rental'. The American National Bank filed a return which stated: 'on the 20th of November, 1963 at 1:10 P.M. said bank was served with a garnishee summons in the above entitled action and that said bank was then, and is now, upon no account whatever indebted or under liability to the Defendant, Harvey Layton and Jean Layton, and that said bank then had and now has in its possession or under its control no real or personal property effects or credits of any description whatever belonging to said defendant, (or any description whatever belong to said defendant,) or any in which said defendant has any interest, and is in no matter liable as garnishee in this action, except $26.80 in checking.' Another garnishment action was brought against the Laytons on the same day against the same bank account. This was referred to as the McNabb action.

The bank's Return does not show in whose name the checking account was carried, but Jean Layton testified it was in her name and the funds were derived from Aid to Dependent Children. Mrs. Layton retained an attorney and instead of filing exemptions a motion to dismiss the garnishment proceedings was made on the grounds the garnishment affidavit was incorrect, untrue, and insufficient. A hearing was had and the garnishment proceedings were dismissed. The reason for dismissal is not clearly stated, but apparently is based on the discrepancy in the dates of the account and the use of the printed singular word 'defendant' instead of 'defendants' in the garnishment affidavit. It should be noted, however, that in the typed portion of the affidavit and the garnishee summons the plural word 'defendants' appears.

This action by Jean Layton against Art Chase for abuse of legal process followed. Plaintiff's theory of action is that defendant knowing her bank account was exempt from garnishment wilfully and maliciously caused garnishment proceedings to issue with intention to vex, harass, and coerce her into paying tractor rental which she did not owe and in connection with such proceedings defendant falsely stated in his affidavit that rent was due from July 20, 1962 to October 17, 1963.

Abuse of process consists of the malicious misuse or misapplication of legal process after its issuance to accomplish some collateral purpose not warranted or properly attainable thereby. 1 Am.Jur.2d Abuse...