{
  "id": 2903982,
  "name": "M. Lerner and J. Weiss, Plaintiffs in Error, v. Wendel Borack, Defendant in Error",
  "name_abbreviation": "Lerner v. Borack",
  "decision_date": "1914-11-30",
  "docket_number": "Gen. No. 19,033",
  "first_page": "603",
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  "last_updated": "2023-07-14T20:38:10.053698+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "M. Lerner and J. Weiss, Plaintiffs in Error, v. Wendel Borack, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nThis is a writ of error brought to reverse a judgment of the Municipal Court of Chicago in favor of the defendant in a suit brought for the malicious and unwarranted use of legal process, namely, an attachment writ on which a levy was made on plaintiffs\u2019 goods.\nThere is a distinction between the \u201cmalicious abuse of process\u201d and the \u201cmalicious use of process.\u201d If process is used maliciously, not for the ostensible purpose for which the law provides it, but for an ulterior purpose\u2014for example, to intimidate, oppress or punish a person against whom it is sued out\u2014-it is \u201cmalicious abuse of process.\u201d If it is used in truth for its ostensible purpose\u2014for example, to collect a debt by attachment, but so used unwarrantably and without probable cause\u2014it is a \u201cmalicious use of process.\u201d\nWe think that even if the allegations of plaintiffs in error that the debt which it was sought to collect by attachment in this case was not due, are to be considered as proven by them- in the face of defendant\u2019s testimony to the contrary\u2014a conclusion which we are not disposed to concede\u2014nevertheless the cause of action is the malicious use and not the malicious abuse of process. Therefore, even assuming further, as we do riot tliink we should in order to reverse this judgment, that the suing out of the attachment was \u201cmalicious\u201d and that there was no other defense to this action, it would remain true that it must fail because it is not averred nor proven that' the attachment proceeding has terminated favorably to the plaintiffs. In the case of a suit for the \u201cmalicious use of process\u201d as distinguished from an action for the \u201cmalicious abuse of process,\u201d such averment and proof are necessary. Emery v. Ginnan, 24 Ill. App. 65; Reynolds v. DeGeer, 13 Ill. App. 113; Swepson v. Davis, 109 Tenn. 99, Mayer v. Walter, 64 Pa. 283; Grainger v. Hill, 4 Bing. N. Cas. 212 (Opinion by Park, J.); 1 Cooley on Torts (3rd Ed,) p. 353, note 42.\nIt is true that the record, although not the abstract, shows that Lerner testified: \u201cWe paid $25 for attorney\u2019s fees in defending the attachment suit and having the attachment writ quashed;\u201d but apart from the fact that we will not go to the record to correct the abstract in order to reverse a judgment, this statement by itself does not show a final determination of even the attachment issue in favor of the defendant. Still less does it show \u201ca favorable termination of the suit.\u201d\nThe judgment of the Municipal Court is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Charles G. Rose, for plaintiffs in error.",
      "No appearance for defendant in error."
    ],
    "corrections": "",
    "head_matter": "M. Lerner and J. Weiss, Plaintiffs in Error, v. Wendel Borack, Defendant in Error.\nGen. No. 19,033.\n1. Process, \u00a7 100 \u2014distinction between malicious use and abuse of. If a writ is used for an ulterior purpose, such as to intimidate, oppress or punish a person against whom it is sued out, it is \u201cmalicious abuse of process,\u201d while if it is used in truth for its ostensible object, such as to collect a debt by attachment, but is so used unwarrantably and without probable cause, it is a \u201cmalicious use of process.\u201d .\n2. Process, \u00a7 100 \u2014what constitutes malicious use of. Where an attachment writ is sued out to collect a debt before it is due, the cause of action, if any, is the malicious use and not the malicious abuse of process.\n3. Attachment, \u00a7 337 \u2014what must be averred and proved in action for malicious attachment. In a suit for the \u201cmalicious use of process\u201d as distinguished from the \u201cmalicious abuse of process,\u201d by reason of a levy under an attachment writ, it must be averred and proved that the attachment proceeding has terminated favorably to the plaintiffs.\n' 4. Appeal and erbob, \u00a7 892*\u2014effect of insufficient abstract. An Appellate Court will not go to the record to correct the abstract in order to reverse a judgment.\n5. Malicious prosecution. \u00a7 61 \u2014evidence insufficient to show favorable termination of suit. Where one of the plaintiffs testified that they paid twenty-five dollars for attorney\u2019s fees in defending the attachment suit and in having the attachment writ quashed, it is not sufficient to show a favorable termination of the suit such as to entitle them to a cause of action for the malicious use of process.\nError to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the March term, 1913.\nAffirmed.\nOpinion filed November 30, 1914.\nCharles G. Rose, for plaintiffs in error.\nNo appearance for defendant in error.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0603-01",
  "first_page_order": 629,
  "last_page_order": 631
}
