Hibbard, Spencer, Bartlett & Co. v. Ryan

Appellate Court of Illinois

Hibbard, Spencer, Bartlett & Co. v. Ryan

46 Ill. App. 313, 1892 Ill. App. LEXIS 356

CourtAppellate Court of Illinois

DecidedOctober 28, 1892

StatusPublished

Cited by1 cases

This text of 46 Ill. App. 313 (Hibbard, Spencer, Bartlett & Co. v. Ryan) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hibbard, Spencer, Bartlett & Co. v. Ryan, 46 Ill. App. 313, 1892 Ill. App. LEXIS 356 (Ill. Ct. App. 1892).

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Opinion

Mr. Justice Gary.

The appellant is a corporation; the appellees a partnership. The action is by the latter, as plaintiff beloxv, against the former, for maliciously prosecuting an attachment without probable cause. Were' there no other objections, the corporate character of the appellant would be no defense. 2 Beach on Corporations, Sec. 453. But the return on the writ of attachment does not show that any property was attached, and the return can not be added to by parol. Wilson v. Greathouse, 1 Scam. 174; Botsford v. O’Connor, 57 Ill. 72.

For any imputation upon the conduct of the appellees, contained in the affidavit for an attachment, no action for libel would lie. Strauss v. Mayer, 48 Ill. 385.

It folloxvs that it is not an independent ground of action - in any form. The appellees submitted to the attachment; paid the just debt for which it was sued out, and costs. This bars the present action. To sustain an action for a malicious prosecution of criminal process, the prosecution must have been judicially terminated in favor of the plaintiff. Leyenberger v. Paul, 40 Ill. App. 516. This action stands on the same footing. Lawrence v. Hageman, 56 Ill. 68.

There is a class of actions very ill defined, called actions for the abuse of process, which resemble somewhat actions for malicious prosecution—Wanzer v. Bright, 52 Ill. 35, and Spaids v. Barrett, 57 Ill. 289, are examples—the tendency of -which is to mislead and confuse. But they stand upon the ground that the plaintiffs in them sought by them to obtain something to which they were not entitled at all, or used, some fraud or deception, misleading the defendant. See Johnson v. Reed, 136 Mass. 421, and cases there cited.

Iii fact the only grievance which the appellees suffered was in the alleged falsity of the affidavit upon which the attachment issued, and for that there is no remedy. Strauss v. Meyer, 48 Ill. 385.

The judgment is reversed and the cause remanded.

Heversed and remanded.

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Mr. Justice Gary.

The appellant is a corporation; the appellees a partnership. The action is by the latter, as plaintiff beloxv, against the former, for maliciously prosecuting an attachment without probable cause. Were' there no other objections, the corporate character of the appellant would be no defense. 2 Beach on Corporations, Sec. 453. But the return on the writ of attachment does not show that any property was attached, and the return can not be added to by parol. Wilson v. Greathouse, 1 Scam. 174; Botsford v. O’Connor, 57 Ill. 72.

For any imputation upon the conduct of the appellees, contained in the affidavit for an attachment, no action for libel would lie. Strauss v. Mayer, 48 Ill. 385.

It folloxvs that it is not an independent ground of action - in any form. The appellees submitted to the attachment; paid the just debt for which it was sued out, and costs. This bars the present action. To sustain an action for a malicious prosecution of criminal process, the prosecution must have been judicially terminated in favor of the plaintiff. Leyenberger v. Paul, 40 Ill. App. 516. This action stands on the same footing. Lawrence v. Hageman, 56 Ill. 68.

There is a class of actions very ill defined, called actions for the abuse of process, which resemble somewhat actions for malicious prosecution—Wanzer v. Bright, 52 Ill. 35, and Spaids v. Barrett, 57 Ill. 289, are examples—the tendency of -which is to mislead and confuse. But they stand upon the ground that the plaintiffs in them sought by them to obtain something to which they were not entitled at all, or used, some fraud or deception, misleading the defendant. See Johnson v. Reed, 136 Mass. 421, and cases there cited.

Iii fact the only grievance which the appellees suffered was in the alleged falsity of the affidavit upon which the attachment issued, and for that there is no remedy. Strauss v. Meyer, 48 Ill. 385.

The judgment is reversed and the cause remanded.

Heversed and remanded.

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