Swartz v. Brockton Sav. Bank

• Decision Date: 28 March 1945
• Citation: 318 Mass. 66,60 N.E.2d 362
• Parties: SWARTZ v. BROCKTON SAV. BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 66

60 N.E.2d 362

SWARTZ

v.BROCKTON SAV. BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1945.

Exceptions from Superior Court, Suffolk County; Burns, Judge.

Action by Freda Swartz against Brockton Savings Bank for malicious abuse of process. A verdict for defendant was entered under leave reserved after jury had returned a verdict for plaintiff, and plaintiff brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, WILKINS, and SPAULDING, JJ.

M. H. Goldman and N. Richman, both of Boston, for plaintiff.

M. J. Zieman, of Boston, for defendant.

LUMMUS, Justice.

The plaintiff's husband, Jacob Swartz, owed the defendant $26 for rent of a tenement from March 15 to April 15, 1940. The defendant claimed that sum and no more and on January 7, 1941, instructed its attorney in writing to collect that sum, by action if necessary. The plaintiff's husband called on the attorney, and offered to pay that sum in instalments, but the attorney insisted upon full payment of that sum at once. Nothing was paid.

On January 20, 1941, the attorney brought a writ, with an ad damnum of $110, and drew a declaration for three months' rent at $26 a month, adding to the rent actually due rent for the months immediately preceding and succeeding the month for which the rent was actually due. By G.L.(Ter.Ed.) c. 223, § 48, as amended by St.1937, c. 308, and St.1938, c. 348, a keeper of attached property may not be appointed unless the writ bears the indorsement of a judge of the court in which the action is commenced, stating that such appointment is necessary. The attorney presented the writ and declaration to such a judge, and obtained such an indorsement upon the stipulation that the declaration when entered in court must be the same as that presented to the judge.

The officer then attached personal property in the store at 1587 Tremont Street in Boston, and placed a keeper in the store. Later the attached property, to the amount of the ad damnum, was removed from the store. Still later the action was tried, and a judgment rendered for the present defendant, then the plaintiff, in the sum of $26 and costs, and execution was issued thereon. The execution was satisfied by payment, and the attached property was returned.

There was evidence that the store belonged to the plaintiff, Freda Swartz, and not to her husband, although her husband worked there. But no married woman's certificate had been recorded as required by G.L.(Ter.Ed.) c. 209, §§ 10, 11. Therefore the personal property employed in the business carried on by the plaintiff in the store was liable to attachment in an action against her husband. But that fact does not give the defendant immunity from liability to the plaintiff for a malicious abuse of process. Kolas v. LaRochelle, 270 Mass. 49, 169 N.E. 662.

There was no impropriety in fixing the ad damnum at $110 in an action upon a claim for $26. Interest and taxable costs might raise the amount of the claim to the amount of the ad damnum. See now St.1943, c. 234, § 1, G.L. (Ter.Ed.) c. 223, § 42A.

The present action is for an alleged malicious abuse of process. In such an action, unlike an action for malicious prosecution (Rosenblum v. Ginis, 297 Mass. 493, 497, 9 N.E.2d 525), the plaintiff need not show a termination of the earlier proceeding in her favor. She may recover for a malicious abuse of process even though she or her property was liable in the earlier proceeding. Zinn v. Rice, 154 Mass. 1, 27 N.E. 772,12 L.R.A. 288;White v. Apsley Rubber Co., 81 Mass. 339, 63 N.E. 885;Malone v. Belcher, 216 Mass. 209, 211, 103 N.E. 637, 49 L.R.A.,N.S., 753, Ann.Cas.1915A, 830.

Obviously, the size of the debt might property affect the discretion of a judge when asked to indorse a writ to enable a keeper to be appointed. A judge might properly deny the use of such a means to collect a trifling claim. We are not referred to any formal rule or established practice in the court in which the original action was brought. But the judge evidently was interested in the nature and amount of the claim, for he stipulated that the declaration filed should be the very declaration that had been presented to him. The jury could find that the fact that the declaration was for $78 instead of $26 was a material factor in obtaining the indorsement of the judge. The jury...