Summary
In McKay Machine Co v Bosway Corp, 24 Mich. App. 276; 180 N.W.2d 96 (1970), the Court cited Spear v Pendill, 164 Mich. 620; 130 N.W. 343 (1911), and said "[t]he proper issuance of process may become tainted by its subsequent use, but a regular use of process with bad intentions is not a malicious abuse of that process.
Summary of this case from Gehrke v. JanowitzOpinion
Docket No. 7,037.
Decided June 1, 1970.
Appeal from Wayne, Blair Moody, Jr., J. Submitted Division 1 April 14, 1970, at Detroit. (Docket No. 7,037.) Decided June 1, 1970.
Complaint by McKay Machine Company against Bosway Tube and Steel Corporation on a promissory note with writs of garnishment. Defendant counterclaimed seeking damages for abuse of process for issuance of the writs of garnishment. Summary judgment dismissing counterclaim granted. Defendant appeals. Affirmed.
Cross, Wrock, Miller Vieson ( W. Robert Chandler, of counsel), for plaintiff.
Hill, Lewis, Adams, Goodrich Tait ( Timothy D. Wittlinger, of counsel), for defendant.
Defendant appeals from the summary judgments of dismissal of its counterclaim and supplemental counterclaim against plaintiff.
October 10, 1968, plaintiff filed its complaint against defendant to recover the amount of the latter's promissory note to the former, and summons issued. At the same time, three writs of garnishment issued and were served. These writs were quashed October 23, 1968 on defendant's motion, because the affidavits on which the writs were based were held to be fatally defective due to an insufficient statement of facts to support plaintiff's claim of just apprehension of loss.
October 23, 1968, plaintiff filed new affidavits, and new writs of garnishment issued to the same garnishee defendants named in the first writs. Again defendant moved to quash, and this motion was denied December 13, 1968.
December 5, 1968, defendant filed its counterclaim seeking damages against plaintiff for abuse of process on the basis of the issuance of the first writs of garnishment. By judgment of February 13, 1969, the trial court dismissed this counterclaim on plaintiff's motion. By stipulation, a supplemental counterclaim for damages, based on the same theory but on the issuance of the second writs of garnishment, was filed. Again, on plaintiff's motion on March 3, 1969, judgment entered dismissing the supplemental counterclaim.
Garnishment was proper prior to judgment in this contract action. MCLA § 600.4011(1) (Stat Ann 1962 Rev § 27A.4011[1]), GCR 1963, 738. The trial court found that the affidavits for the second writs were sufficient, and defendant has not appealed this finding. The March 3, 1969 judgment dismissing defendant's supplemental counterclaim is affirmed.
The essential elements to establish an action for abuse of process are, (a) the existence of an ulterior purpose and (b) an act in the use of the process not proper in the regular prosecution of the proceeding. Spear v. Pendill (1911), 164 Mich. 620; Pilette Industries, Inc., v. Alexander (1969), 17 Mich. App. 226. It is defendant's contention that the purpose element must be judged from the state of mind of the garnisher, and that this is a jury question, hence summary judgment was improper.
Defendant's position in this regard is not supported by the authorities it cites, and it is contrary to Pilette, supra, at page 228:
"The proper issuance of process may become tainted by its subsequent use, but a regular use of process with bad intentions is not a malicious abuse of that process. Spear v. Pendill, supra. The manner of use of the process, not the intention, is what is evaluated."
Affirmed with costs to plaintiff.