Seizure of Property under Legal Process

An action for abuse of legal process can be made if the process is put to wrongful, illegal, and unjustifiable purpose.  A legal process used in the seizure of property to harass or injure the owner of property is an abuse of process.[i] Similarly use of a legal process to enforce payment of a judgment known to be false, fraudulent, or nonexistent is an abuse of legal process.  In Malone v. Belcher,[ii] the court held that an attachment order issued ostensibly to collect brokerage commissions constituted abuse of process.

An action for abuse of legal process can be made if; seizure of property is not made as per the terms of process, or is made in excess, or is made knowing that it is  exempt from attachment, or knowing that it does not belong to debtor.

In Four Star Stage Lighting, Inc. v. Merrick,[iii] the defendant used the order of seizure in order to force plaintiff into buying one of the equipment at an unreasonable price.  The court held that there is abuse of process.  Similarly if a creditor seizes debtor’s equipment for a value in excess of the alleged debt there is abuse of process.  Successive seizures of exempt property like the earnings of the debtor give rise to an action for abuse of process.[iv]

However in Layton v. Chase,[v] the court held that successive garnishment of exempt property support an action for the abuse of process.  But mere garnishment of money or property which may be claimed as exempt is not sufficient for an action for abuse of process. Before a person may recover for abuse of process s/he must show that the damages claimed occurred as the natural and probable consequences of the other person’s wrong. An attachment of property for a debt not yet due is not an abuse of process.  In Docter v. Riedel,[vi] the court held that the test is whether the process has been used to achieve some unlawful purpose.

[i] RAILROAD CO. v. HARDWARE CO., 138 N.C. 174 (N.C. 1905)

[ii] 216 Mass. 209 (Mass. 1913)

[iii] 56 A.D.2d 767 (N.Y. App. Div. 1st Dep’t 1977)

[iv] Arc Inv. Co. v. Tiffith, 164 Cal. App. 2d Supp. 853 (Cal. App. Dep’t Super. Ct. 1958)

[v] 82 S.D. 270 (S.D. 1966)

[vi] 96 Wis. 158 (Wis. 1897)


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