321 Mass. 9

January 9, 1947 - February 3, 1947

Suffolk County


Evidence, in an action of tort for abuse of legal process, that the defendant, knowing that the plaintiff had satisfied an indebtedness to him, nevertheless had obtained a judgment for the debt against the plaintiff by default and had caused supplementary proceedings to be brought and prosecuted under G. L. (Ter. Ed.) c. 224, would have warranted a verdict for the plaintiff; and it was error to order a verdict for the defendant.

TORT. Writ in the Superior Court dated January 15, 1945.

The case was tried before Dillon, J.

M. Rosenthal, for the plaintiff.

No argument nor brief for the defendant.

RONAN, J. This is an action of tort for abuse of legal process. The defendant brought an action of contract to recover a small indebtedness owed to him by the plaintiff. The latter then paid something on account to the defendant's attorney, and the plaintiff's wife, a few days before the return day of the writ, went to the defendant's place of business and paid the balance of the account to the defendant's clerk, who telephoned to the defendant's attorney and "told him that it was O. K.," and told the plaintiff's wife that it was not necessary to go to court. The plaintiff did not appear in court, and judgment followed his default. The defendant instructed his attorney to bring supplementary proceedings against the plaintiff, and the plaintiff secured counsel and appeared in these proceedings which were finally dismissed. The judgment which was entered in the action of contract was subsequently vacated, and judgment for Lorusso was entered by agreement of the parties. The record would support findings of all of these

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facts. The judge in the present action, subject to the exception of the plaintiff, directed a verdict for the defendant.

The bringing and prosecution of supplementary proceedings under G. L. (Ter. Ed.) c. 224 by one, who could have been found to have known that his alleged debtor had fully satisfied his indebtedness, for the purpose of compelling him to pay again, constitute an abuse of legal process. The commencement and maintenance of an action known to be groundless to accomplish such a purpose are a perversion of legal process and make the instigator liable for the damages sustained by the one against whom he has brought such proceedings. White v. Apsley Rubber Co. 194 Mass. 97. Lopes v. Connolly, 210 Mass. 487. Malone v. Belcher, 216 Mass. 209. Reardon v. Sadd, 262 Mass. 345. Pihl v. Morris, 319 Mass. 577. Restatement: Torts, Section 682, illustration 2.

Exceptions sustained.