{"id":16757,"date":"2018-07-01T23:27:17","date_gmt":"2018-07-01T23:27:17","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=16757"},"modified":"2018-07-08T20:41:15","modified_gmt":"2018-07-08T20:41:15","slug":"malicious-abuse-of-process","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=16757","title":{"rendered":"abuse of process – improper, intentional, tortious use of civil or criminal process to obtain a result that is either unlawful or beyond the purpose for which such process was designed"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Criminal Law Self-Help<\/a> >>>> Legal Terms pertaining to Assessing Varying Degrees of Crimes<\/a>\u00a0>>>> Malice<\/a>\u00a0>>>> Malicious Prosecution<\/a>:<\/strong><\/span><\/p>\n

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abuse of process<\/span>:<\/span><\/strong>
\n (1809)<\/span><\/p>\n

1. The improper and tortious<\/a> use of a legitimately issued court process<\/a> to obtain a result that is either unlawful or beyond the process’s scope.<\/strong> \u2014 aka abuse of legal process<\/span><\/strong><\/em>; malicious abuse of process<\/span><\/strong><\/em>; malicious abuse of legal process<\/strong><\/span><\/em>; wrongful process<\/span><\/strong><\/em>; wrongful process of law<\/span><\/strong><\/em>. [1]
\n<\/span><\/p>\n

1. The malicious perversion of a regularly issued civil or criminal process<\/a>, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss<\/a> sustained. 1 Am J2d Abuse P\u00a0\u00a7 1<\/span>.<\/span><\/strong><\/span><\/p>\n

Malicious use of process<\/a> is the employment of process<\/a> for its ostensible purpose, but without\u00a0<\/span>reasonable<\/span>\u00a0or probable cause<\/a>,\u00a0whereas the malicious abuse of process is the employment of a process in a manner not contemplated by law, tor to effect a purpose which such a process is not intended by law to effect. 1 Am J2d Abuse P\u00a0\u00a7 2<\/span>.<\/span><\/span><\/strong> [2]<\/span><\/span><\/p>\n

1. The use of legal process in a manner not contemplated by the law to achieve a purpose not intended by the law. \u00a0EXAMPLE: causing an ex-husband to be arrested for nonsupport of his child in order to secure his agreement with respect to custody.<\/span><\/strong>
\n\u00a0 \u00a0 \u00a0See malicious abuse of process<\/em>. \u00a0Compare malicious use of process<\/em>. [3]<\/span><\/p>\n

Excerpt from Martin L. Newell’s A Treatise on the Law of Malicious Prosecution, False Imprisonment, and the Abuse of Legal Process 7 (1892):
\n<\/span><\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 “Distinction between a malicious use and a malicious abuse of process. \u2014 There is a distinction between a malicious use and a malicious abuse of legal proc ess.\u00a0 An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect; in other words, it is a perversion of it.\u00a0 For example, if a man is arrested, or his property seized, in order to extortfrom him, even tho8ghy it be to pay a just claim, other than that in suit, or to compel him to give up possession of a deed or anything of value not the legal object of the process, it is settled there is an action for such malicious abuse of process.\u00a0 it is not necessary to prove that the action in which the process issued has been determined or to aver that it was sued out without probable cause<\/a>.”
\n<\/span><\/span><\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from Restatement (Second) of Torts \u00a7 682 (1977):<\/span><\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0 “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.<\/span>“<\/span><\/strong><\/p>\n

malicious abuse of process:<\/span><\/span><\/strong><\/span><\/p>\n

1. A\u00a0<\/span>willful<\/span>\u00a0and intentional abuse or misuse of process to attain\u00a0an objective which is unlawful in itself or beyond the purposes for which the process may be legally employed. <\/span><\/span>Anno: l4 ALR2d 322; 1 Am J2d Abuse P \u00a7 6<\/span>.<\/span><\/span><\/strong>\u00a0[2]<\/span><\/span><\/p>\n

1. The\u00a0<\/span>willful<\/span>\u00a0and intentional misuse of process for a purpose\u00a0other than the purpose for which it was designed.\u00a0 EXAMPLE: subjecting an adverse party to excessive litigation\u00a0 expenses by the unrestrained use of process, such as depositions, interrogatories, motions to compel discovery, and the like.<\/span><\/span><\/strong> [3]<\/span><\/span><\/p>\n

Related Terms:<\/span><\/strong><\/p>\n

process<\/span><\/a> – the means of compelling a defendant to appear in court (civil or criminal cases), and all the acts of the court from the beginning to the end of an action or proceeding.<\/span><\/strong><\/p>\n

due process<\/span><\/a> – the conduct of legal proceedings according to established rules, forms, and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.<\/span><\/strong><\/span><\/p>\n