King v. Johnston

51 N.W. 1011, 81 Wis. 578, 1892 Wisc. LEXIS 85

Opinion

Oassoday, J.

The complaint does not state a cause of action for false imprisonment, since it fails to allege facts showing that the arrest was extra-judicial or without legal process. Murphy v. Martin, 58 Wis. 276; Gelzenleuchter v. Niemeyer, 64 Wis. 321. The complaint does not state a cause of action for malicious prosecution, since it fails to allege facts showing that the criminal action had been determined. Woodworth v. Mills, 61 Wis. 44; West v. Hayes, 104 Ind. 251; Lowe v. Wartman, 47 N. J. Law, 413; Comm. v. McClusky, 151 Mass. 488; 14 Am. & Eng. Ency. of Law, 28, 42, and cases there cited. There are cases holding that an action for the malicious abuse of legal process may be maintained even where the action in which such process issued has not been determined. Mayer v. Walter, 64 Pa. St. 283; Antcliff v. June, 81 Mich. 477; Emery v. Ginnan, 24 Ill. App. 65. In the Pennsylvania case cited Mr. Justice ShaRswood said: “ There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it.” Assuming that the pleader here intended to allege such abuse of legal process, which is very doubtful, still we are constrained to hold that the complaint, the substance of which is contained in the foregoing statement, fails to state such a cause of action.

By the Court.— The order of the circuit court is affirmed.