Appeal from the Circuit Court of Lake County, Nineteenth
Judicial Circuit; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
The appellants prosecute this appeal from an order of the Circuit Court of Lake County entered May 21, 1969, that dismissed their amended counterclaim.
On January 20, 1969, the plaintiffs, pursuant to leave of court, filed an amended complaint to foreclose two mortgages on certain lots in Long Grove Country Club Estates. The defendants moved to dismiss the amended complaint on the grounds that there was an appeal pending before this court from a judgment entered in favor of the plaintiff, Roy Anderson, against Long Grove Country Club Estates, Inc. (hereafter called Long Grove) for a breach of a sales contract that involved the same property in the foreclosure. The motion was denied and the defendants answered the complaint and filed a counterclaim that was itself subsequently amended. The original foreclosure suit was eventually dismissed when the amounts due the plaintiffs were paid in full.
The amended counterclaim was brought in seven counts based, for the most part, on the earlier action for breach of contract. That suit had been brought by Roy Anderson and others against Long Grove and Robert Anderson for the breach of a contract to purchase 337 acres of land from the plaintiffs. The complaint alleged, among other things, that Robert Anderson had wrongfully diverted assets from Long Grove to his own use and otherwise mismanaged the corporation to induce a breach of the sales contract and sought judgment against both parties. The trial court in that suit entered judgment against Long Grove in the amount of $252,800 but found that Robert Anderson had previously been absolved from personal liability by an agreement between the parties. Count I of the counterclaim stated that Roy Anderson had thus maliciously prosecuted Robert Anderson in that he knew the allegations as to misuse of corporate funds and personal liability were false and that as a result Robert Anderson was damaged in that he was unable to profitably sell real estate subject to lis pendens and that the threat of a personal judgment impaired his credit and resulted in a substantial loss of income.
[1-3] Ordinarily, malicious prosecution suits are founded on criminal prosecutions and are not favored in the law. Shelton v. Barry, 328 Ill. App. 497, 507, 66 N.E.2d 697. Under Illinois law, an action for malicious prosecution of a civil suit cannot be maintained unless the plaintiff can show some special injury. Caspers v. Chicago Real Estate Board, 58 Ill. App.2d 113, 118, 206 N.E.2d 787. The rule has been stated in Schwartz v. Schwartz, 366 Ill. 247, p 250, 8 N.E.2d 668, as follows:
"[An action] for malicious prosecution of a civil suit without probable cause cannot be maintained where the action upon which it is grounded is an ordinary civil action, begun by summons and not accompanied by arrest of the person or seizure of his property, or by special injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action. . . . The ground for the rule is, that courts should be open to litigants for the settlement of their rights without fear of prosecution for calling upon courts to determine such rights."
Although Count I does allege the other necessary elements of an action for malicious prosecution, it clearly lacks any allegations of special injury. The fact that Roy Anderson filed a lis pendens notice and that Robert Anderson's credit was impaired as a result of the pending litigation could not be construed as ". . . special injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action." Accordingly, we conclude that Count I of the amended counterclaim was fatally defective and properly dismissed by the trial court.
Count II charged that Roy Anderson was guilty of abuse of process in the earlier action. Judgment had been entered against Long Grove on March 25, 1968, and execution issued on April 2. After post-trial motions were denied, a notice of appeal was filed on May 23 and on June 4 the trial court entered an order that extended the period to file a supersedeas bond to July 15. Long Grove alleged that Roy Anderson did on June 27 ". . . with malicious intent, and with an ulterior purpose" cause a notice of sheriff's sale to be posted on their place of business and serve citations to discover assets on other creditors to induce the holders of other mortgages to commence foreclosure.
An action for abuse of process can only be maintained where there is an ulterior purpose and the process is used in a manner that is not proper in the regular prosecution of the proceeding. Ammons v. Jet Credit Sales, Inc., 34 Ill. App.2d 456, 462, 181 N.E.2d 601. Count II does contain sufficient allegations as to the first element in that it states that the process was used to induce other creditors to harass the defendants and force the loss of their property. The appellants contend further that the use of the notice and citations was clearly improper since they were issued after the notice of appeal had been filed and before the expiration of the time period in which they were permitted to perfect supersedeas. Although they are unable to cite any authority, the appellants argue that the only logical interpretation of Supreme Court Rule 305 (Ill Rev Stats 1967, c 110A, par 305) is that a notice of appeal of itself operates as a supersedeas until the expiration of the time in which the supersedeas is to be perfected.
Paragraph (a) of Rule 305 states:
"Supersedeas in the Trial Court. An appeal operates as a supersedeas if the notice of appeal is filed within 30 days after the judgment appealed from becomes final and if within that 30-day period, or any extension of time provided for in this paragraph, a bond in a reasonable amount to secure the appellee is approved by the circuit court and filed."
The contention of the appellants contradicts the clear language of the Rule that an appeal operates as a supersedeas only if filed within 30 days and a bond is filed and approved. If execution or other supplementary proceedings are commenced within the 30-day period, or extensions, an appellant need only utilize the remedies provided in section 70 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 70) to quash the proceeding as was in fact done in this case.
Since it is not contended that either the notice of sheriff's sale or the citations were otherwise improper, we perforce must agree that Count II was properly dismissed ...