Davis v. Sequin

176 N.W.2d 707, 22 Mich. App. 44, 1970 Mich. App. LEXIS 1937

• Court: Michigan Court of Appeals
• Decided: February 24, 1970
• Docket: Docket 6,951
• Status: Published

Opinion

Per Curiam.

On July 10,1963, the municipal court for the city of Muskegon Heights granted defendant, Associates Loan Company, a consent judgment against the plaintiff. The judgment was not recoverable on a voluntary basis, and was transcribed to the Mqskegon circuit court on November 15, 1963. Subsequently, several writs of garnishment were issued in an unsuccessful attempt to satisfy the judgment.

On August 3, 1964, a writ of execution was issued from the Muskegon county circuit court, and pursuant thereto, levy was made on plaintiff’s 1955 model automobile which he claimed was exempt from levy by virtue of MCLA § 600.6023a(5) (Stat Ann 1970 Cum Supp § 27A.6023a[5]). Plaintiff never attempted to contest this levy by judicial proceedings, but rather filed suit on September 30, 1964, alleging an abuse of process.

At the conclusion of plaintiff’s proofs, the trial court granted a summary judgment in favor of defendants.

There are two elements necessary to prove an abuse of process. “First, an ulterior purpose must be shown. Second, defendant must perform an act which is improper in the regular conduct or prosecution of a proceeding.” Pilette Industries, Inc., v. Alexander (1969), 17 Mich App 226, 227, 228.

Garnishment after judgment is a legitimate and frequently-used procedure to satisfy a claim evidenced by a judgment; MCLA § 600.4011 (Stat Arm 1962 Rev § 27A.4011); and the same can be said for a writ of execution on assets of the debtor. MCLA § 600.6001 et seq. (Stat Ann 1962 Rev § 27A.6001 et seq.).

Although the particular property might have been exempt from execution under MCLA § 600.6023a(5) (Stat Ann 1970 Cum Supp § 27A.6023a[5]), it cannot be said that execution was for some ulterior purpose as the debt is admittedly owed.

After considering all available evidence in a light most favorable to the plaintiff, Lepley v. Bryant (1953), 336 Mich 224, the trial judge did not err in granting summary judgment to the defendant.

Affirmed. Costs to defendant.