Moore v. Michigan Nat. Bank
| Decision Date | 01 October 1962 |
| Docket Number | No. 32,J,32 |
| Citation | 1 A.L.R.3d 948,368 Mich. 71,117 N.W.2d 105 |
| Parties | , 1 A.L.R.3d 948 John A. MOORE, Plaintiff and Appellee, v. MICHIGAN NATIONAL BANK, a National Banking Association, Defendant and Appellant. an. Term. |
| Court | Michigan Supreme Court |
Walsh, O'Sullivan, Stommel & Sharp, Port Huron, for defendant and appellant.
Katsoulos & Gillis, Hazel Park, for plaintiff and appellee.
Before the Entire Bench, except BLACK and SOURIS, JJ.
On or about June 26, 1953, an officer of the defendant corporation instituted criminal proceedings against the plaintiff by signing a complaint charging the plaintiff with having knowingly submitted false financial statements to the defendant for the purpose of procuring a loan, in violation of C.L.1948, § 750.219 (Stat.Ann. § 28.416). Before signing, the record shows that the defendant requested an opinion from the prosecuting attorney as well as private counsel as to whether the defendant's statements constituted sufficient grounds for criminal prosecution. In both instances the defendant was advised in the affirmative. Subsequently, the defendant was tried in circuit court and convicted on April 25, 1955. Leave to appeal his conviction was granted by this Court. For reasons not disclosed, plaintiff and a successor prosecuting attorney entered a stipulation to dismiss the appeal. Upon motion of the prosecutor a nolle prosequi was entered in circuit court dismissing the charge against the plaintiff on or about June 6, 1958.
On June 3, 1960, the plaintiff filed suit seeking damages under counts in malicious prosecution and abuse of process. The defendant countered with a motion to dismiss for the reasons that (1) conviction by a jury in the county of plaintiff's residence was conclusive evidence of probable cause barring plaintiff's count for malicious prosecution, and (2) the abuse of process count did not state a cause of action, and even if found to do so it was barred on its face by the statute of limitations. Appeal is taken on leave granted from an order denying the motion.
Nowhere in his declaration did plaintiff allege that his conviction was obtained by fraud, perjury or subornation. Hence, by his own showing he failed to establish a want of probable cause. Phillips v. Village of Kalamazoo, 53 Mich. 33, 18 N.W. 547. By long established rule in this jurisdiction, a conviction in criminal proceedings is conclusive proof of probable cause, unless procured by false or fraudulent testimony or other unlawful means, and the rule applies, although the judgment of conviction is subsequently reversed by a higher court, and the plaintiff acquitted and discharged. Thick v. Washer, 137 Mich. 155, 100 N.W. 394. Also see Phillips v. Village of Kalamazoo, supra; Holmes v. Horger, 96 Mich. 408, 56 N.W. 3; Piechowiak v. Bissell, 305 Mich. 486, 9 N.W.2d 685; American Law Institute, Restatement, Torts, Sec. 667. Entering a nolle prosequi after conviction in no way alters this rule. Plaintiff's count in malicious prosecution ought to have been dismissed.
Averring that two days after several mortgages given the defendant as security were declared invalid during bankruptcy proceedings, defendant signed the complaint in question, the plaintiff declared that criminal action was taken against him for the ulterior purpose of humiliating him and bringing such discredit to his business reputation so as to coerce him into paying a debt owed to the defendant bank. The declaration further states that while the criminal proceedings were pending, the defendant instituted a civil suit on December 10, 1954 to collect the debt. Because of the defendant bank's harassing tactics in the criminal proceeding, the plaintiff alleged he was forced to reach a settlement.
Improper use of criminal process as a means of collecting a private debt may be so abusive that it constitutes an actionable tort. Marlatte v. Weickgenant, 147 Mich. 266, 110 N.W. 1061; 162 A.L.R. 800. However, this is of little consequence to the plaintiff if his right is barred by the statute of limitations. The problem immediately at hand is to determine when a cause of action for abuse of process accrues. In this regard distinction is often made between an action for malicious use of process and abuse of process. The former action requires a showing that process was employed without probable cause. 72 C.J.S. Process § 119, pp. 1188, 1189; 14 A.L.R.2d 322. It is also said that in the instance of malicious use, the proceeding must terminate favorably to the plaintiff.
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