#### MARY CHARLES McCARTNEY v. APPALACHIAN HALL, INC.

(Filed 2 March, 1949.)

Process § 15—

Where, in an action for abuse of process, the complaint alleges that the process was null and void, demurrer is properly sustained, since a cause of action for abuse of process lies only for the malicious misuse or misapplication of valid process.

Appeal by plaintiff from Shuford, Special Judge, November Term, 1948, of BuNCOMbe.

Affirmed.

Don G. Young for plaintiff, appellant.

Smothers & Meekins for defendant, appellee.

DeviN, J.

In the first cause of action set out in plaintiff’s complaint she undertook to allege abuse of process as the basis of a claim for damages. Defendant’s demurrer thereto was sustained and plaintiff appealed. Plaintiff’s second cause of action as set out - in her complaint is not involved in the appeal.

The gravamen of the complaint was that plaintiff had been received as an insane person in defendant’s institution on the authority of a letter *61from one who claimed to have been appointed ber guardian in Blount County, Tennessee, and tbat she was detained thereunder by tbe defendant for a longer period tban 20 days (G.S. 35-58). It is alleged tbat tbe entire proceeding “was totally null and void,” and later was so determined by tbe courts of Tennessee.

It was said in Ellis v. Wellons, 224 N.C. 269, 29 S.E. 2d 884, quoting witb approval from 1 A.J. 176, tbat “abuse of legal process consists in tbe malicious misuse or misapplication of tbat process to accomplisb some purpose not warranted or commanded by tbe writ. In brief, it is tbe malicious perversion of a regularly issued process whereby a result not lawfully or properly attainable under it is secured.” And in Melton v. Hickman, 225 N.C. 700, 36 S.E. 2d 276, it was again declared tbat abuse of' process was “tbe malicious perversion of a legally issued process.” Hence, it follows tbat whatever remedies tbe plaintiff may be entitled to pursue for redress of ber alleged wrongs, she may not be permitted to maintain, as against a demurrer, a cause of action for abuse of process upon allegation tbat tbe process under which she was made to suffer was totally null and void.

Tbe judgment sustaining tbe demurrer to plaintiff’s first cause of action is

Affirmed.