Hearing v. Citizens Band & Trust Co.

Moylan, J., delivered the opinion of the Court. On December 23, 1969, the Citizens Bank and Trust Company, the appellee, through its attorney, instituted confessed judgment proceedings in the Circuit Court for Prince George’s County on two demand notes held by the Bank against Lyle E. DeWees, James F. Herring, and Worth W. Offutt, the appellants. Judgment was entered on December 30, 1969. As a result of the institution of that action, the appellants (Lyle E. DeWees and James F. Herring, jointly, and Worth W. Offutt, individually) filed suits against the Bank alleging 1) malicious use of process, 2) abuse of civil process, and 3) business defamation.

The cases were removed to the Circuit Court for Calvert County and consolidated for trial. At the close of the plaintiffs’ case, a directed verdict was granted in favor of the defendant as to the business defamation count. At the conclusion of the defendant’s case, a directed verdict was ⁵²⁰ granted in favor of the defendant on the second count alleging abuse of civil process. The jury returned a verdict in favor of the plaintiffs on the malicious use of process count, awarding to Lyle E. DeWees compensatory damages in the amount of $39,000 and punitive damages in the amount of $30,000; to James F. Herring, compensatory damages in the amount of $21,000 and punitive damages in the amount of $30,000; and to Worth W. Offutt, compensatory damages in the amount of $29,000 and punitive damages in the amount of $30,000.

A motion for judgment n.o.v. or, in the alternative, a motion for a new trial was filed by the defendant-appellee. After a hearing, the judgment n.o.v. was granted, and judgment was entered in favor of the defendant. The court further ruled that if judgment were to be reinstated upon appeal, the court would grant the motion for new trial unless the plaintiff DeWees agree to a remittitur of the compensatory damages in excess of $7,500; the plaintiff Herring, to a remittitur of compensatory damages in excess of $2,000; and the plaintiff Offutt, to a remittitur of compensatory damages in excess of $5,000; and further that all plaintiffs agree to a complete remittitur of punitive damages. On appeal, the plaintiffs-appellants raise four contentions: 1) That the trial court erred in granting defendant’s motion for a directed verdict on the count of business defamation; 2) That the trial court erred in granting defendant’s motion for a directed verdict on the count of abuse of civil process; 3) That the trial court erred in granting judgment n.o.v. because the evidence in the case was sufficient to support the jury’s verdict on the count of malicious use of process; and 4) That the trial court abused its discretion in conditionally granting remittitur or, in the alternative, a new trial. ⁵²¹ The Facts of the Case The facts underlying the institution of confessed judgment proceedings are a tangled skein.

The object of all the complicated legal transactions is a tract of land, known as “the Spencer tract,” situated in Prince George’s County. The first relevant transaction for present purposes was on March 13, 1956, when Maude B. Eslocker and her husband sold the property to S. Aubrey Spencer for an indicated price of $65,000. Oh that same day, Spencer executed a deed of trust 1 for the benefit of Maude B. Eslocker (hereinafter the Eslocker mortgage), evidenced by a promissory note for $45,000. On May 31, 1963, Spencer and his wife conveyed the property to Lyle E. DeWees and Robert H. Law, as joint tenants, for an indicated price of $100,000.

On that same day, DeWees and Law executed a mortgage to Spencer and his wife (hereinafter the Spencer mortgage), evidenced by a promissory note for $48,568.70. Then on June 5, 1963, DeWees and Law, in turn, conveyed the property to T. D. Burgess and wife and Frank G. Principe and wife. Under a Joint Venture Agreement, dated June 4, 1963, the title was to be held for the benefit of Lyle C. DeWees, Oscar R. Duley, T. D. Burgess and Frank G. Principe. Upon Duley’s death, James Herring and Worth W. Offutt (the two appellants along with the appellant DeWees) purchased his interest.

Three years later, on April 1, 1966, three of the joint venturers (and the wives of two of them) determined to redeem the property from its encumbrances. On that date, Lyle C. DeWees and wife, James Herring and wife and Worth W. Offutt borrowed $18,614.52 upon a demand note from the defendant Citizens Bank. With this, they purchased “the Eslocker mortgage” from its holder. This deed of trust was then endorsed in blank and delivered to the ⁵²² defendant Bank by the borrowers as collateral security for the demand loan.

The same borrowers, on June 9, 1966, undertook to accomplish the same redemption with respect to the Spencer mortgage. They borrowed $40,882.82 from the Citizens Bank and with it purchased the Spencer mortgage note from its holder. That mortgage note was then endorsed in blank and delivered to the Bank by the borrowers as collateral security for the demand loan. As of the dates of these two loans by the Bank, both of the collateral notes (the Eslocker deed of trust and the Spencer mortgage) were past due, and, at the option of the holder, the entire balances were due and payable.

In early 1968, disagreement broke out among the joint venturers and resulted in litigation. An action was filed by the joint venturers requesting the appointment of trustees to oversee the sale of the Spencer tract and to assure the proper distribution of the proceeds among the joint venturers and their just creditors. By a court order of June 5, 1969, Hal C. B. Clagett and Thomas B. Yewell were appointed trustees. As early as March 11, 1968, Yewell, then acting as attorney for DeWees, wrote to the Citizens Bank about the pending litigation and gave his legal opinion that since the notes held by the Bank as collateral security were secured by encumbrances against the property, they would be priority claims against the proceeds of the sale of the property.

In April, 1969, the joint venture having failed to pay taxes due on the property, Prince George’s County was preparing tax foreclosure proceedings. On April 17, 1969, the Bank, in writing, demanded payment on the two demand notes. On April 24, 1969, the Bank retained C. Edward Hartman, II, to enforce the payment of the money owed the Bank. Although payments on the demand notes had been made regularly through April, 1969, the Bank refused the tender of the May payment since it had already made demand for full payment.

On May 5, 1969, Hartman informed Yewell that the Bank wanted payment on the demand notes and that it was the Bank’s intention to foreclose on the two ⁵²³ mortgages if full payment was not immediately forthcoming. Yewell asked Hartman to forebear from such actions because 1) a foreclosure sale would deprive him of the sale commission he would get if the property were sold through the equity proceeding and 2) he (Yewell) thought that a sale through the equity proceeding would bring a higher price. Hartman replied that he would take no further action without notifying Yewell. On May 20,1969, the Bank filed a petition reciting that the Eslocker mortgage was in default, that the Bank was about to begin foreclosure on the deed of trust and asking that Ronald Council be appointed trustee for the purpose of such foreclosure.

Meanwhile, Yewell and Clagett had been appointed on June 5 as trustees to sell the property. Knowing that this decree was being prepared, Hartman had asked that the decree include a paragraph specifying that both the deed of trust and the second mortgage held by Citizens Bank be paid from the sale proceeds as priority items. The decree, prepared by Yewell, made no mention of the Bank’s priority claim. On June 6, 1969, the day after the appointment of the trustees, the Bank was permitted to intervene in the equity proceeding, seeking a clarification of the decree.

By a petition filed on June 7, the Bank recited that it held the two demand notes together with the deed of trust and the second mortgage, that they were in default and that if the property was to be sold free and clear of the mortgages that the Bank might lose the land which was its security on the demand notes. The Bank also petitioned the court to instruct the trustees to pay in full the two collateral notes, if the property were to be sold free and clear of the liens. On September 26, 1969, the Spencer tract was sold by the trustees for $200,000, free and clear of all liens. The advertisements for the sale recited that the property was “to be sold free and clear of all encumbrances.” On September 30, 1969, Hartman sent Yewell a sheet showing the balance due on all the notes and asking the date of settlement in order to appear, collect the Bank’s money, and reassign the liens and notes.

On October 7, Yewell ⁵²⁴ replied, stating that a verified claim should be filed and notifying Hartman that the trustees would disburse the amount due to the Bank upon ratification of the sale and audit. On October 14, the Bank filed the verified claim, seeking payment of $69,004.02. This represented the face value of the two mortgages. From it the Bank desired to pay the amount due on the two demand notes ($51,649.21) plus something in excess of $5,300 in attorney’s fees plus an extra cushion to be returned to the trustees after the Bank made its disbursements.

On December 11, 1969, Yewell wrote Hartman that both trustees and the auditor were in agreement that the claim, as based on the collateral notes, could not be paid and called for the Bank to submit its claim based on the judgment notes and “surrender with the claim the notes held as collateral security. Then, when Citizens Bank ... has been paid, the collateral security notes could be marked ‘paid,’ and the property could be released from the force and effect of the encumbrances securing the payment of those notes.” Yewell had notified Hartman by telephone that he thought the claimed attorney’s fee of $5,300 was excessive. He indicated that as DeWees’s attorney, he would object; but that as trustee, he would pay whatever the court allowed. Prior to December 11, Yewell had had two or three conversations with Hartman and a conference before the auditor, in each of which he repeated his position that the claim was improper.

Yewell testified that during this period, things were getting disagreeable between himself and Hartman. He testified that Hartman said he was going to reduce the notes to judgment, if Yewell did not agree in advance to the $5,300 attorney’s fee. On December 16, Hartman wrote to both trustees, reciting the execution of the notes, the assignment of the liens and quoting Yewell’s legal opinion of March 11,1968. He referred in the letter to the fact that he had been induced to forebear foreclosing the liens by Yewell’s request that the trustees be permitted to sell.

He recited that he followed Yewell’s advice and filed the claim based upon the collateral notes. Yewell replied, on December 19, that in his opinion the Bank should ⁵²⁵ never have referred the case to an attorney and was not, therefore, entitled to be reimbursed for attorney’s fees in any amount. He stated that any claim that included attorney’s fees would be rejected. On December 22, Hartman responded that if the trustees would not pay the claim filed by the Bank, he would recommend that the Bank pursue any legal remedy available to insure payment.

Accordingly, Hartman mailed to the clerk of the Circuit Court for Prince George’s County, on December 23, Declarations and the Confessions of Judgment on the two demand notes. Judgment was entered on December 30,1969. On December 24, the trustees filed a Petition for Rule to Show Cause, ordering the defendant Bank to show cause why it should not file a verified claim based on the demand notes. A copy of such Petition and Order to Show Cause was received by Hartman on December 29.

Meanwhile, on January 12, 1970, the appellants received notice of the entry of judgment on the confessed judgment notes. On January 27, a hearing was held on the Rule to Show Cause. The trustees were ordered to pay that sum due on the demand notes, $51,649.21, plus interest. The trustees were also ordered to pay attorney’s fees in the amount of $1500.

The judgments were marked paid and satisfied. The common denominator claim of all appellants, running through the various charges, is that the filing of the confessed judgment notes was unnecessary and malicious and resulted in injury to the credit ratings of the appellants and injury to their personal and business reputations. Based upon the institution of the confessed judgment actions by the Bank, the appellants filed suit, alleging 1) malicious use of process, 2) abuse of civil process and 3) business defamation. Business Defamation In urging that the institution of the confessed judgment proceedings constituted that sub-variety of libel 2 known as ⁵²⁶ business defamation, the appellants candidly acknowledge that there is no authority in Maryland supporting that position.

They attempt to reason from analogy. They rely on M & S Furniture Sales Co. v. Edward J. DeBartolo Corp., 249 Md. 540 , 241 A. 2d 126 , for the not-to-be-doubted proposition that actions and conduct, as well as printed or spoken words, can be actionable, and for the further proposition that whether or not a cause is actionable per se or per quod lies in the proof of the resulting injury. They further rely on DeWitt v. Scarlett, 113 Md. 47 , 77 A. 271 , for the general proposition that defamation denoting a poor credit rating, without justification, is actionable per se. By combining these two cases, appellants urge that the defendant Bank’s conduct in initiating confessed judgment actions necessarily denoted a poor credit rating on the part of the appellants and was, therefore, actionable per se.

They totally ignore the controlling principle that communications made with respect to judicial proceedings are accorded an absolute privilege. Completely dispositive of the charge of business defamation, based exclusively on the institution of confessed judgment proceedings, is Kennedy v. Cannon, 229 Md. 92, 96-97 , 182 A. 2d 54 : “The statement just quoted [from Maulsby v. Reifsnider, 69 Md. 143, 151 , 14 A. 505 (1888), to the effect that defamatory words spoken by counsel ‘in a judicial proceeding’ are privileged] reflects the view of a majority of the jurisdictions, in this country, although the semantics in this area of tort law have changed somewhat since the date of the Maulsby case. What was characterized in that case as a qualified privilege for communications, conditioned on their being pertinent or relevant to a judicial proceeding, without regard to the motive of the speaker, is referred to by modern text writers and in case law as an absolute privilege. See, for example, Brush-Moore Newsp. v. Pollitt, 220 Md. 132, 137 , 151 A. 2d 530 (1959); Sanders v. Leeson Air Conditioning Corporation, 108 N.W.2d 761 (Mich. 1961); Ramstead v. Morgan, 347 P. 2d 594 (Ore. ⁵²⁷ 1959); Bailey v. McGill, 100 S.E.2d 860 (N.C. 1957); Prosser, Torts (2nd ed.), pp. 606, et seq.; 69 Harv.

L. Rev. 875 , 920. This absolute immunity extends to the judge as well as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case.” (Emphasis supplied) The same principle was reasserted and reiterated in DiBlasio v. Kolodner, 233 Md. 512, 521-522 , 197 A. 2d 245 . And cf. Wesko v. G.E.M., Inc., 19 Md. App. 161, 169-170 , 310 A. 2d 191, 195-196 . In Prosser, Law of Torts (4th ed. 1971) the applicable law is set out at Chapter 19, “Defamation,” Section 114, “Absolute Privilege,” p. 778: “Likewise the privilege extends to counsel in the conduct of the case; and, since there is an obvious public interest in affording to everyone the utmost freedom of access to the courts, it extends also to the parties to private litigation, as well as to defendants and instigators of prosecution in criminal cases.

The privilege covers anything that may be said in relation to the matter at issue, whether it be in the pleadings, [citing DiBlasio v. Kolodner, supra] in affidavits, or in open court.” We find totally unpersuasive the one case cited by the appellants, which arguably goes the other way. Moore v. Rolin, 89 Va. 107 , 15 S. E. 520 (1892), permitted recovery in a libel action on the basis of damage done to a business reputation and credit rating by the filing of a mechanic’s lien. * Of only incidental significance is the fact that the court there found that the mechanic’s lien was clearly “prematurely filed.” Of far greater significance to us is the fact that the court simply did not consider, and presumably was not asked to consider, the question of privilege. We ⁵²⁸ cannot consider it as authority for a point which it did not discuss. What the appellants take to be silent implication may have been, rather, a declining to enter into areas which counsel did not raise.

It may also have been a pure oversight. We hold that the trial judge was not in error in granting the directed verdict in favor of the defendant Bank on the charge of business defamation. Abuse of Process The appellants are also chagrined at the granting of the Motion for a Directed Verdict at the end of the entire case in favor of the Bank on the charge of abuse of process. The thrust of their argument is that the Bank threatened to institute the confessed judgment proceedings in order to force them, in the trustees’ action, to pay $5,000 in fees to the Bank’s attorneys above and beyond the amount due on the demand notes.

The appellants utterly failed, however, to prove that the process of the court was actually abused or perverted once it had issued. It is clear that such actual abuse of the process, above and beyond any ulterior motive in procuring its issuance, is an indispensable element of the common law tort. In defining “abuse of process,” the authorities do so largely by contrasting it with “malicious use of process.” Bartlett v. Christhilf 69 Md. 219 , 14 A. 518 , made it clear that the tort applied to the perverted execution of a writ and not to the method or motivation of its issuance, saying at 69 Md. 229 -230: “A malicious abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a regularly issued process whereby a result not lawfully or properly attainable under it, is secured.

There is nothing on the face of the declaration to ⁵²⁹ show that the order of the Circuit Court was, after having been issued, misused in any way. It was served upon the appellant as its terms directed. He was not arrested and his property was not seized under it. It is true that the count avers that the appellee did maliciously make use of the process of the court by causing to be filed a petition for the purpose of having the appellant declared in contempt, etc.; but these averments relate to acts done with a view to the procuring of the order, and not to anything done under or in pretended pursuance of the order.

The allegations of the count impeach the good faith of the proceedings which culminated in the order. They do not show any abuse of the order when issued. . .. The manner of obtaining the order is quite a different thing from the manner of executing it, when obtained.” (Emphasis supplied) Relying on Bartlett v. Christhilf, the Court of Appeals restated the distinction between “malicious use of process” and “abuse of process” and restated the definition of the latter in Walker v. American Security Co., 237 Md. 80, 87 , 205 A. 2d 302 : “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.” (Emphasis supplied) ⁵³⁰ See also James v. Goldberg, 256 Md. 520, 530-531 , 261 A. 2d 753 .

As an illustration of process regularly issued but then abused in the manner of its execution, Bartlett v. Christhilf, supra, cites the classic English case of Grainger v. Hill, 4 Bing. N.C. 212, 132 Eng. Rep. 769 (1838). In the Grainger case, the defendant had the plaintiff arrested under proper civil process, but then connived with the officer charged with the execution of the writ of arrest to use it as a means to compel the plaintiff to surrender a ship’s register, without which the plaintiff could not go to sea.

This was held to be “an object totally foreign to that to which the process actually issued.” A dictum in Zablonsky v. Perkins, 230 Md. 365, 370 , 187 A. 2d 314 , indicated that the filing of otherwise appropriate criminal charges for larceny after trust in an attempt “to use the State’s criminal process as a private collection agency” might well be “a perversion of legal process to improper ends, which might give rise to an action of an abuse of process.” 3 That the critical factor is the actual use made of the process after it has issued is made clear in 1 Am. Jur. 2d, Abuse of Process, § 2, “Distinguished from action for malicious prosecution and malicious use of process” : “An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued. . . . [W]here the thing complained of is not that issuance of the process was wrongfully procured, but that, having been issued, it was wilfully perverted, so as to accomplish a result ⁵³¹ not commanded by it or lawfully obtainable under it, the action is one for abuse of process.” To a similar effect, see Prosser, supra, Ch. 22, “Misuse of Legal Procedure,” § 121, “Abuse of Process” : “Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. ... Thus if the defendant prosecutes an innocent plaintiff for a crime without reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.” We do not intimate that any legally sufficient evidence was present to establish an ulterior or unworthy purpose in the Bank in instituting the confessed judgment proceedings.

We are stressing rather the total absence of the second element of the tort — the willful act in the use of the process, after it had been issued, not proper in the regular conduct of the proceedings. Indeed, even as to the first element of ulterior motive, the actual decision to proceed finally along the confessed judgment route appears to have foreclosed the hoped-for settlement in the trustees’ action which would have included the enhanced attorney’s fees. If the procurement of the $5,000 in attorney’s fees could indeed be deemed an ulterior motive, the antecedent threat to institute confessed judgment proceedings might well have served its purpose, but the actual institution of such proceedings would appear to have been resorted to only when all hope of achieving that ulterior purpose was despaired of. It was the forbearance of proceedings and not the institution of proceedings which was, even according to the appellants, calculated to produce compliance with the request for the enhanced fee. ⁵³² Even if such ulterior purpose were to be assumed, however, the law is clear that that is but one of two necessary elements of the tort of abuse of process.

Ash v. Cohn, 119 N.J.L. 54, 58 , 194 A. 174, 176 , is instructive: “An action for malicious abuse of process is distinguished from an action for malicious use of process, in that the action for abuse of process lies for the improper, unwarranted, and perverted use of process after it has been issued; while that for the malicious use of it lies for causing process to issue maliciously and without reasonable or probable cause.... Thus it is said in substance, that the distinction between malicious use and malicious abuse of process is that the malicious use is the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law.” What was actually accomplished by the filing of the confessed judgments is the ultimate test. It is clear that the “process” was used simply to collect the debt and not for “accomplishing some illegal object or purpose for which such process was not legally intended.” Coplea v. Bybee, 290 Ill. App. 117 , 8 N.E.2d 55, 59 .

It is clear that this was not a case where “the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.” Id. What motivated the institution of the process is immaterial. What is critical is that once the process had been issued, it served only to do the very thing for which it was precisely intended — to assure the collection of the debt. Abuse of process, as an action, only “lies for the improper, unwarranted and perverted use of process after it has been issued, since the malicious abuse of process is the employment of a process in a manner not contemplated by law.” Earl v. Winne, 14 N. J. 119, 101 A. 2d ⁵³³ 535, 544 (emphasis supplied). “[T]he process itself was [not] put to an illegal use.” Baird v. Aluminum Seal Co., 250 F. 2d 595, 600 (3rd Cir. 1957).

The appellants are imaginative in their efforts to establish this second element of the tort. They argue initially that “the use of confessed judgments perverted the pending trustees’ action.” They continue to argue, however, on the basis of intent and not on the basis of ultimate effect. The “undue and excessive attorney’s fees” of $5,000, the express thing which they feared and resisted, were never awarded. They fail to show how the use of confessed judgment actions actually “perverted” the pending trustees’ action.

The Bank, in seeking payment of the notes due, was not limited in remedies it might pursue in effecting collection. The fact that there may have existed another proceeding involving the same subject matter could in no way divest the Bank of its legal rights under the terms of the promissory notes. The possibility that the collateral effects of the Bank’s exercise of its legal rights could involve a temporary tying-up of assets held by the trustees, or result in a dispute over attorney’s fees, does not establish that second element necessary to hold the Bank liable for the tort of abuse of process. The appellants’ second effort to establish a misuse of the process to achieve an end not contemplated by law is a naked essay in “boot strapping.” They argue that “the use of process perverted the confessed judgment action itself.” They argue that the regular conduct of proceedings in the trustees’ action would have guaranteed the Bank the amounts due on the notes.

It was in fact the absence of such a guarantee that was one of the factors that obviously prompted the Bank to initiate the confessed judgment actions. The Bank’s attorney properly resisted the abandonment of the Bank’s priority claim because there was no assurance that the claim would be honored as a priority one if it were based on the demand notes. They argue finally that “the issue of process perverted the Show Cause Order.” The evidence revealed, however, that the Bank’s attorney had already mailed the Declaration and ⁵³⁴ Confession of Judgment on the notes to the Clerk of the Circuit Court before his receipt of the service of the Rule to Show Cause. There is no rule of law requiring a declarant to withdraw a confessed judgment action when the party-declared against subsequently causes a Rule to Show Cause to be issued in a separate equity proceeding.

In all of these arguments, moreover, the appellants take as their predicate the issuance of the process and not the manner of its use following issuance. Just as it is clear that neither an ulterior motive nor a bad intention is sufficient to establish the tort, so too is it clear that even the issuance of process is not itself actionable. There must be an abuse of the process after it has been issued — a utilization of it to achieve an irregular end. 1 Am. Jur. 2d, A buse of Process, § 4, “Elements and requisites of actionable abuse,” pp. 252-253, says: “It is generally recognized that the elements essential to sustain the action are: (1) that the defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process, and (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process, and (3) that damage resulted to the plaintiff from the irregularity.

While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial. An ulterior motive or a bad intention in using the process is not alone sufficient, the bad intent must have culminated in the abuse, for it is the latter which is the gist of the action. An action for abuse of process cannot be maintained where the process was employed to perform no other function than that intended by law. Thus the mere issuance of process is not actionable as an abuse of process; ⁵³⁵ there must be use of the process, and that use must of itself be without the scope of the process, and