# McInnis v. Atlantic Investment Corp.

> Oregon Supreme Court · July 8, 1931 · 137 Or. 648

URL: https://www.frixlaw.com/law-library/cases/3840616

## Case

- **Full name:** McINNIS v. ATLANTIC INVESTMENT CORPORATION Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** July 8, 1931
- **Citations:** 137 Or. 648; 4 P.2d 314; 3 P.2d 118; 1931 Ore. LEXIS 214
- **Precedential status:** Published
- **Opinion:** Addendum by Campbell
- **Judges:** Belt, Bean, Brown, Campbell
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3840616

## Opinion text

On Petition eor Rehearing
( 4 P. (2d) 314 )
CAMPBELL, J.
Respondent has filed a petition requesting a rehearing and earnestly suggests that this court is in serious error in reversing the judgment of the lower court.
Respondent in his brief, states that “this is not an action for malicious attachment but an action for conspiracy for abuse of process.” If this were true, then the complaint fails to state a cause of action, as there is not one allegation in the complaint showing any abuse of process. There are, however, sufficient allegations in the complaint to show malicious use of the writ of attachment.
“Abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a legally
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issued process whereby a result not lawfully nor properly attainable under it is secured.
“The action for abuse of process as previously stated, seems frequently to have been confounded vpith an action for the malicious use of process, or malicious prosecution, although it is an essentially different action. * * * The two kinds of action really necessary to be distinguished are actions for abuse of process and actions for malicious prosecution. The distinctive nature of an action for malicious abuse of process as compared with an action for malicious prosecution, is that it lies for the improper use of process after it has been issued not for malicious causing process to issue.” 1 R. C. L. 102.
The text is well supported by the authorities. Plaintiff alleges a state of facts that shows a partnership between herself and Malcolm McInnis. They were engaged in a joint enterprise. They had a joint bank account. They had a custodian for their joint funds. It was their joint funds that were attached. Whatever injury was done by reason of the attachment was to the partnership or joint enterprise. The allegation that plaintiff and Malcolm McInnis were husband and wife is mere surplusage. So is the allegation that they held their real estate by the entireties. There is no estate by entireties in personal property, and it was only personal property belonging to the partnership that was attached. There was no trespass on the realty.
The complaint does not state a cause of action in favor of plaintiff individually. When the court instructed the jury that plaintiff could recover in her individual right, whoever may have suggested the instruction, it, in effect, told the jury that they might return a verdict in favor of plaintiff on a complaint that did not state a cause of action. Plaintiff filed her complaint on the theory that she could recover for an
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injury done to a partnership without joining the other partners. Plaintiff, after the dissolution of the partnership, might not bring an action in her own name, and for her own benefit, for damages, arising out of tort, sustained by the partnership during its existence. The other partner, or his legal representative, was an indispensable party to the action.
There was only one cause of action against defendants. The allegations of the complaint do not disclose a cause of action in favor of each individual partner.
It so happens in this case that there were only two partners. But suppose there were a half dozen partners, it surely would not be contended that one partner could bring an action for a joint injury to the partnership, without joining the other partners. There is a total lack of evidence of an individual injury. All the testimony introduced tended to show a joint injury or an injury to the partnership. The jurors had nothing but their imaginations with which to segregate the injury done plaintiff and fix a value thereon.
The petition for a rehearing will be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3840616. Public record. Not legal advice.