Rock v. Abrashin

• Decision Date: 27 September 1929
• Docket Number: 21787.
• Citation: 280 P. 740,154 Wash. 51
• Parties: ROCK et ux. v. ABRASHIN et al.
• Court: Washington Supreme Court

280 P. 740

154 Wash. 51

ROCK et ux. v. ABRASHIN et al.

No. 21787.

Supreme Court of Washington

September 27, 1929

Department 1.

Appeal from Superior Court, King County; Austin E. Griffiths, Judge.

Action by Wallace W. Rock and wife against Al. Abrashin, doing business as Al Grocery, and others. Judgment for plaintiffs and defendants appeal. Reversed and remanded with instructions.

Paul Long & Carlson, of Seattle, for appellants.

Frank A. Steele and Harry M. Westfall, both of Seattle, for respondents.

PER CURIAM.

In this action, tried by the court sitting without a jury, the respondents, who are husband and wife, recovered against the appellants in the sum of $300, on a complaint charging an abuse of legal process.

The facts, as we gather them from the record, are in substance these: The appellant Abrashin, during the time of the transactions which gave rise to the controversy, conducted a grocery store in the city of Seattle. He sold on credit to the respondents groceries, which were used by them in their own support and in the support of their family. Later on, for the balance due on the account, they gave to Abrashin their promissory notes, four in number, for $15 each. These notes they did not pay, and Abrashin placed them in the hands of his coappellant Koenigsberg, for collection. An action was thereafter begun in a justice's court to recover on the notes, the complaint alleging that they were given for necessaries. The respondents, although personally served defaulted in the action, and a judgment was taken against them for the amount of the notes with interest and costs; the judgment totaling $75.40. The respondent husband was at this time employed by the contracting firm of Teufel & Carlson at a wage of $6 per day, and at times earned an additional sum by working overtime. After the judgment was obtained a writ of garnishment was issued on the judgment and served upon the husband's employed. What sum was impounded by the writ the record does not disclose, but it does appear that the proceeding was settled and dismissed on the payment of $12.50, which was credited on the judgment. Thereafter on May 5, 1927, May 11, 1927, June 14, 1927, and June 17, 1927 successive writs of garnishment were issued on the judgment and served upon the husband's employer, who made return thereto to the effect that there were only small sums earned by the husband which remained unpaid, and that these had been assigned to one Fancher. The appellants did not controvert the returns, and in each instance the garnishee was discharged. Subsequently, the appellants caused a duly certified transcript of the judgment to be filed in the office of the county clerk of the county in which the judgment was rendered, and caused a supplemental proceeding to be issued thereon from the superior court of that county. These proceedings were not further prosecuted and were subsequently dismissed.

While we have not ourselves directly passed upon the questions, the courts generally hold that an action will lie for a malicious abuse of lawful process, civil or criminal, and this although the process is issued upon a valid judgment for a just cause, and is valid in form. Actions of this sort are not so common as are those of a somewhat kindred nature, such as actions for malicious prosecution, wrongful attachment, false imprisonment, and the like, and there seems to be some confusion in the authorities as to the exact scope and nature of the action. Without citing cases--these may be found under the appropriate heads in any of the standard text-works--it may be said generally that the abuse of legal process consists of the malicious perversion of a regularly issued process whereby a result is obtained, or sought to be obtained, not properly obtainable under it. Perhaps, the more common instance is...