Opinion
(Filed 10 November, 1931.)
Process D a — Action for abuse of process is properly nonsuited where the evidence shows that the case was orderly and regularly prosecuted.
Where a criminal action for false pretense has been nonsuited, but the evidence shows that it was regularly and orderly prosecuted according to the procedure therefor, and there is no evidence to the contrary, it will not sustain an action by the defendant therein for malicious abuse of process, and motion as of nonsuit on the evidence in the civil action will be sustained on appeal. Stanford v. Grocery Co., 143 N.C. 419. Lockhart v. Bear, 117 N.C. 298, where a demurrer o the complaint was filed is distinguished.
APPEAL by plaintiff from Clement. J., at February Term, 1931, of ROCKINGHAM.
Sharp Sharp, Hunter K. Penn and Glidewell, Dunn Gwyn for plaintiff.
Brown Trotter for defendant.
On 24 October, 1927, Howard Martin purchased an automobile from the Reidsville Motor Company, falsely representing that he was of age. Morris Plan C. v. Palmer, 185 N.C. 109, 116 S.E. 261; Hight v. Harris, 188 N.C. 328, 124 S.E. 623. Later, after the automobile had been stolen or disposed of, he brought an action to rescind the contract and to recover back the purchase money paid. McCormick v. Crotts, 198 N.C. 664, 153 S.E. 152; Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177. Thereafter, the said Howard Martin was indicted and tried on a charge of obtaining said automobile under false pretense. 14 R. C. L., 265. The court nonsuited the case on the ground that the defendant was a minor. He was not under sixteen years of age at the time of the purchase of the automobile, so as to come within the Juvenile Court Act, S. v. Burnett, 179 N.C. 735, 102, S.E., 711; S. v. Coble, 181 N.C. 554. 107 S.E. 132. "He looked to be 21, if not more. He said he was going on 22."
This action was then instituted for malicious abuse of process, alleged to have arisen out of said criminal prosecution.
From a judgment of nonsuit, the plaintiff appeals.
Conceding, without deciding, that the criminal action against the plaintiff was instituted for retaliatory purposes only, nevertheless there is no evidence of any act done therein contrary to the orderly and regular prosecution of the case. Stanford v. Grocery Co., 143 N.C. 419, 55 S.E. 815.
The case of Lockhart v. Bear, 117 N.C. 298, 23 S.E. 484, cited and relied upon by the plaintiff, was decided upon a demurrer to the complaint, rather than on a demurrer to the evidence, and is quite different in the facts alleged.
Affirmed.