Delisi v. Garnett

Singley, J., delivered the opinion of the Court. In February, 1965, Mr. and Mrs. Delisi, who live in Riverdale, in Prince George’s County, bought a grocery store in Kensington from Garnett, and gave him their ⁶ note for $1,500 as part of the purchase price. By June, 1965, the Delisis had become disenchanted with their bargain, and closed the store. Garnett brought suit on the note, which was past due and unpaid.

While this case was pending, Garnett, having learned that the Delisis had gone to Florida, had an attachment on original process issued against the Delisis as absconding debtors 1 as permitted by Maryland Rule G 40 c and levied against their residence. The Delisis returned from Florida, had the attachment quashed, and then sued Garnett in Montgomery County for damages for wrongful attachment. The damage suit was removed to St. Mary’s County for trial. Garnett’s motion for a directed verdict, made at the end of the Delisis’ case, was granted and judgment was entered for Garnett.

This appeal followed. In deciding whether a defendant’s motion for a directed ■verdict should have been granted, we must consider the evidence, together with all reasonable and legitimate inferences which may be deduced therefrom, in the light most favorable to the plaintiff. Smith v. Aulick, 252 Md. 268 , 250 A. 2d 534 (1969) ; Wood v. Johnson, 242 Md. 446 , 219 A. 2d 231 (1966) ; Grue v. Collins, 237 Md. 150 , 205 A. 2d 260 (1964) ; Smith v. Bernfeld, 226 Md. 400 , 174 A. 2d 53 (1961). The Delisis’ dilemma resulted from their having called Garnett as an adverse witness, with the result that they were bound by his testimony, insofar as it was not impeached or contradicted.

Williams v. Wheeler, 252 Md. 75 , 249 A. 2d 104 (1969) ; P. Flanigan & Sons, Inc. v. Childs, 251 Md. 646 , 248 A. 2d 473 (1968) ; Wood v. Johnson, supra. Garnett had brought suit on the Delisis’ note on 7 July 1965, after he learned that the Delisis had closed the store. He testified that he had heard from customers of the store that Delisi had said he was going to Florida and that when he telephoned the Delisis’ house in Riverdale, ⁷ “We got a recording on his phone that they did not live at this address any more.” Delisi himself testified that the family left for Florida on 15 July. They apparently returned on the 25th, as they had planned.

Garnett’s writ of attachment had been issued on the 19th, and levy had been made on the 21st. There can be no doubt that a wrongful attachment or garnishment may be actionable as an abuse of process, or alternatively in much the same way that redress can be sought for malicious prosecution, depending on the facts. To sustain a recovery in cases where the writ was properly issued, however, there must be a showing of malice or want of probable cause, 6 Am.Jur.2d Attachment § 597 (1963) at 985. Judge Horney, speaking for the Court, stated the rule in Walker v. American Security & Trust Co., 237 Md. 80, 87 , 205 A. 2d 302 (1964) : “A tort action for abuse of process, on the one hand, and the tort actions for malicious prosecution and malicious use of process, on the other hand, are essentially different and independent actions.

An action for abuse of process differs from actions for malicious prosecution and malicious use of process in that abuse of process is concerned with the improper use of criminal or civil process in a manner not contemplated by law after it has been issued, without the necessity of showing lack of probable cause or termination of the proceeding in favor of the plaintiff, while actions for malicious prosecution and malicious use of process are concerned with maliciously causing criminal or civil process to issue for its ostensible purpose, but without probable cause. 1 Am.Jur.2d, Abuse of Process, § 2; Prosser, Torts (2nd ed.) Ch. 21, § 100, p. 667. See also Bartlett v. Christhilf, 69 Md. 219 , 14 Atl. 518 (1888) ;