APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
P. COMAN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
In this appeal plaintiff contends that the trial court improperly dismissed her complaint.
The following facts are pertinent to the disposition of this appeal.
Plaintiff brought this action for malicious prosecution following the termination of litigation brought against her by the Bank of Lyons. Her complaint alleges that on April 13, 1962, the Bank of Lyons filed a creditor's complaint against her and others, entitled Bank of Lyons v. Alvin A. Schultz, et al., Case No. 62 C 5684, in the Circuit Court of Cook County. On June 14, 1963, the Bank of Lyons filed a second suit against her and others, entitled Bank of Lyons v. Mary Schultz, et al., Case No. 63 S 13202, in the Superior Court of Cook County, seeking an accounting and an injunction. The injunction was granted on June 14, 1963, and allegedly deprived her of the use of certain assets. On July 2, 1963, this injunction was dissolved and Case No. 63 S 13202 was dismissed upon her motion.
She further alleged that Bank of Lyons thereafter amended its original lawsuit, Case No. 62 C 5684, by adding a second count in which it again sought an accounting and an injunction. She alleged that this count II of Case No. 62 C 5684 named "virtually the same parties and stat[ed] the same cause of action" as Case No. 63 C 13202, the previously dismissed lawsuit. On July 19, 1963, the Bank obtained a temporary injunction in Case No. 62 C 5684 which restrained payment to her of $61,533.27 allegedly due to her from her decedent husband's life insurance policies. Count II of Case No. 62 C 5684 was subsequently dismissed on September 24, 1965, and the aforesaid injunction was dissolved. The injunction was found to have been wrongfully issued for amounts in excess of $30,000 and all withheld funds in excess of $30,000 were ordered released to her.
She also alleged that on November 2, 1965, the Bank of Lyons filed count III of Case No. 62 C 5684, claiming that she had converted and wrongfully withheld funds from the Bank of Lyons. A judgment for her was granted on count III on September 19, 1969, and the remaining $30,000 of insurance proceeds were released. She alleged in her complaint for malicious prosecution that the September 19, 1969, judgment constituted a final determination of the litigation brought against her by the Bank of Lyons.
Plaintiff further alleged "[t]hat all of the aforesaid litigation was instituted by defendant BANK OF LYONS against [her] maliciously and without probable cause and with intent to injure [her] and that each and every action has been terminated in favor of [her]." She claimed that she was injured as a result of the aforesaid actions of the defendant Bank and prayed for $50,000 in compensatory damages, $300,000 in exemplary and punitive damages and the costs of maintaining the malicious prosecution action.
Defendant Bank pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 45 and 48), moved to strike the amended complaint and to dismiss the action with prejudice. After briefing and argument on the motion to strike and dismiss, the trial court dismissed the amended complaint with prejudice. Plaintiff now appeals from the order dismissing her complaint.
Plaintiff contends that the trial court erred in dismissing her complaint for malicious prosecution. She argues that her complaint states a valid cause of action.
1, 2 The elements essential to a cause of action for malicious prosecution "are the institution or continuation of original judicial proceedings by or at the instance of defendant with malice and without probable cause, termination of the proceedings in plaintiff's favor, and damage sustained by plaintiff." (Caspers v. Chicago Real Estate Board (1965), 58 Ill. App.2d 113, 117, 206 N.E.2d 787, 789.) Where the malicious prosecution suit is founded upon a civil action, our supreme court has required that the plaintiff show that the civil action was accompanied by arrest of the person, the seizure of his property, or by some special injury not inherent in all actions brought to recover for similar causes of action. (Smith v. Michigan Buggy Co. (1898), 175 Ill. 619, 51 N.E. 569.) The Bank of Lyons argued in the trial court and contends on appeal that plaintiff has failed to meet the arrest, seizure, or special injury requirement of Smith. She argues, however, that the injunctions in Case Nos. 62 C 5684 and 63 S 13202, which temporarily deprived her of the use of the insurance proceeds on her late husband's life, constituted seizures of property sufficient to support her malicious prosecution action.
3, 4 No Illinois case which answers the precise question of whether such an injunction could constitute a seizure of property for the purpose of establishing a cause of action for malicious prosecution has been brought to our attention. We believe, however, that under the facts of this case the injunctions clearly constituted a seizure of property. The first injunction, in Case No. 63 S 13202, deprived plaintiff of $61,533.27 in life insurance proceeds from June 14, 1963, until July 2, 1963, when the injunction was dissolved. The second injunction, in Case No. 62 C 5684, initially deprived her of $61,533.27 from July 19, 1963, until September 24, 1965, when $31,533.27 was ordered released. The injunction continued, however, to freeze the remaining $30,000 in life insurance proceeds until being dissolved on September 19, 1969. Plainly, these injunctions, each of which prevented plaintiff from using, enjoying and dealing with money rightfully due to her, constituted seizures of property within the meaning of Smith v. Michigan Buggy Co. (1898), 175 Ill. 619, 51 N.E. 569. The fact that the withheld funds were ordered deposited with the clerk of the circuit court does not prevent us from characterizing the injunctions here as seizures of property.
5 Furthermore, we do not believe that this determination does violence to the underlying policy of the arrest, seizure of property or special injury requirement. In Smith v. Michigan Buggy Co. (1898), 175 Ill. 619, 629, 51 N.E. 569, 572, our supreme court, in explaining the requirement, stated that:
"Such ordinary trouble and expense, as arise from the ordinary forms of legal controversy, should be endured by the law-abiding citizen as one of the inevitable burdens, ...