Priest v. Union Agency
| Decision Date | 04 March 1939 |
| Parties | PRIEST v. UNION AGENCY et al. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Davidson County; E. F. Langford, Judge.
Action by John Priest against the Union Agency and others to recover damages for the malicious abuse of process. On plaintiff's petition for writ of certiorari to bring the case before the Supreme Court for review and reversal of trial court's judgment dismissing the suit.
Petition dismissed.
Jos. J Lutin, of Nashville, for plaintiff in error.
Trabue Hume & Armistead and Dodson Batson, all of Nashville, for defendant in error.
This is a suit to recover damages for the malicious abuse of process based upon the following facts: The defendants caused an execution to be issued and levied, by garnishment, upon the wages of plaintiff when, in fact, there was no judgment against him on which an execution could lawfully issue. As a result of this procedure, the wages of plaintiff, of which he was in great need, were impounded for some time, and until the garnishment proceeding was dismissed, as a result of the activities of counsel which plaintiff was forced to employ. Defendants, in discharging the garnishment, stated that their action in the premises was the result of a mistake.
The trial court construed this action to be one for malicious prosecution of a civil suit, which, under section 9080 of the Code, could not be prosecuted in forma pauperis. Upon the refusal of plaintiff to execute a prosecution bond, the court, on motion, dismissed the suit. The court, for the same reason just stated, declined to permit plaintiff to appeal the case to this court upon subscribing to the oath provided for poor persons. The case is before this court upon the petition of plaintiff for the issuance of a writ of certiorari to bring the case to this court for the purpose of having the judgment of the trial court reviewed and reversed.
It appears to us, from a careful reading of the declaration, that the gravamen of the offense charged is the malicious unlawful issuance of the execution. If, in fact, the execution had been lawfully issued, then the serving of same by garnishment would have been regular and would not constitute the offense of malicious abuse of process.
In Sloan v. McCracken, 75 Tenn. 626, 7 Lea 626, 627, it is said:
Likewise, it occurs to us the present action is brought to recover damages for the wrongful suing out or issuance of the execution.
In 1 Am.Jur., Abuse of Process, § 3, p. 176, it is said: "The distinctive nature of an action for abuse of process, as compared with an action for malicious prosecution, is that the former lies for the improper use of process after it has been issued, not for maliciously causing process to issue."
And on pages 178, 179, § 6, it is further stated:
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Harris v. Wal-Mart Stores, Inc.
...of its lawful course to the accomplishment of some object other than that for which it is provided....” Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142, 143 (1939).Defendants argue that Plaintiff's abuse-of-process allegations are conclusory. Citing Ashcroft v. Iqbal, 556 U.S. at 678,......
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Grant, Konvalinka & Harrison, P.C. v. Banks (In re McKenzie)
...whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142, 143–44 (1939) (quoting 1 Am.Jur.,Abuse of Process § 6). GKH urges that the continued filing and prosecution of claims even beyond th......
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United Pet Supply, Inc. v. City of Chattanooga
...in the regular prosecution of the charge.’ ” In re McKenzie, 476 B.R. 515, 534–35 (E.D.Tenn.2012) (quoting Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142, 143 (1939)). In Tennessee, “[m]ere initiation” of a suit is not sufficient; “abuse of process lies ‘for the improper use of proce......
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Givens v. Mullikin ex rel. McElwaney
...in conducting discovery constituted an abuse of process, a tort for which we have long recognized a remedy. See Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142 (1939). As this Court has acknowledged, "`the gist of the tort is not commencing an action or causing process to issue withou......