Abernethy v. . Morrison

2 S.E.2d 369, 215 N.C. 454, 1939 N.C. LEXIS 287

• Court: Supreme Court of North Carolina
• Decided: April 19, 1939
• Status: Published

Opinion

Stacy, C. J.

The question for decision is whether five continuances of a criminal prosecution, procured at the instance of the private prosecutor and extending over a period of 22 months, is evidence of abuse of process. On the facts of the present record, we think the question must be answered in the negative.

In the first place, the jurisdiction of the Superior Court was invoked by the plaintiff. His appeal was from a fine of $25 and the costs. The control of the appeal, when docketed, passed to the solicitor of the district and the judge presiding over the Superior Courts. The continuances were ordered by the court. Abernethy v. Burns, 206 N. C., 370, 173 S. E., 899.

Secondly, it does not appear that the continuances were ordered without the consent of the plaintiff. He was interested in more than one case. It was his privilege to insist upon trial, which he failed to do so far as the record discloses. At any rate, we think the evidence is wanting in sufficiency to establish liability for abuse of process on the part of the defendants. Klander v. West, 205 N. C., 524, 171 S. E., 651; Marlin v. Motor Co., 201 N. C., 641, 161 S. E., 77.

The perverted use of process is the gist of an action for its abuse. Ledford v. Smith, 212 N. C., 447, 193 S. E., 722; Abernethy v. Burns, 210 N. C., 636, 188 S. E., 97; Griffin v. Baker, 192 N. C., 297, 134 S. E., 651; Stanford v. Grocery Co., 143 N. C., 419, 55 S. E., 815. The record discloses no actionable perversion or misapplication of the court’s process on the part of the defendants. Martin v. Motor Co., supra.

Eeversed.