(No. 11520.-Reversed and remanded.)

FRANK C. DIXON, Plaintiff in Error, vs. THe SmithWALLACE SHOE COMPANY, Defendant in Error.

Opinion filed April 17, 1918.

I. APPEALS AND ERRORS—when reversal by the Appellate Court without remanding cause is erroneous. A reversal by the Appellate Court for error of law without remanding the cause is erroneous unless it further appears from the record that the error cannot be obviated upon another trial.

2. SAME when Appellate Court should either remand cause or make finding of facts. Where the Appellate Court reverses a judgment for damages for malicious prosecution because the trial court, over proper objection, erroneously admitted secondary evidence of the proceedings and judgment in the suit complained of, the Appellate Court should either remand the cause to permit proper proof or should find the facts and recite them in its judgment.

3. MALICIOUS PROSECUTION—what must appear to sustain action for malicious prosecution of an attachment. To sustain an action for malicious prosecution it must appear that the former suit terminated in favor of the plaintiff, or, if the action was attachment without personal service on the debtor but upon notice by publication, it must appear that the judgment has been vacated, unless it further appears that the plaintiff had no opportunity to vacate the judgment before he lost his rights in the subject of the attachment. 4. Abuse of prOCESS-what not necessary to sustain action for abuse of process. To sustain an action for damages for abuse of process it is not necessary to allege and prove that the former action has terminated or that the judgment therein has been vacated, as an abuse of process exists where a party employs it for some unlawful object which it was not intended by the law to effect.

5. SAME-what is not malicious abuse of process. The mere institution of a civil suit and the taking of judgment in the same and allowing process to issue regularly, after judgment, in the usual and ordinary manner is not malicious abuse of process; nor is it malicious abuse of process in such case if an attachment is maliciously issued and levied upon lands and a judgment in attachment and order of sale obtained without reasonable or probable cause or without actual notice to the defendant.

6. PRACTICE what evidence is to be considered on a motion to direct a verdict. On a motion to direct a verdict at the close of the plaintiff's evidence only the evidence introduced by the plain

tiff is to be considered, but if, afterwards, the defendant himself offers evidence and again offers said motion, the question whether there is sufficient evidence to sustain the judgment is to be determined from all the evidence in the record.

7. ATTACHMENT-rule where law of another State permits giving debtor notice by publication. Where the laws of another State permit a plaintiff to sue his debtor in attachment and to obtain a judgment therein and an order of sale of the debtor's land without any notice to him other than by publication or notice to his tenant, the plaintiff, although both he and the defendant are residents of Illinois, is not bound to give the debtor actual notice of the pendency of such suit.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. RICHARD S. TUTHILL, Judge, presiding.

BRADY, RUTLEdge & Devaney, (ANDREW Rutledge, of counsel,) for plaintiff in error.

BROTHERS & FAIRFIELD, (ELMER D. BROTHERS, of counsel,) for defendant in error.

Mr. JUSTICE DUNCAN delivered the opinion of the court:

Plaintiff in error (hereinafter called plaintiff) brought an action of trespass on the case against the defendant in error (hereinafter called defendant) in the circuit court of Cook county for wrongfully suing out a writ of attachment against the plaintiff in the circuit court of Henry county, Missouri, and securing a judgment in attachment by default against him and selling his farm in Henry county to satisfy the judgment. A jury trial was had and a verdict rendered for the plaintiff for $3000 and judgment was entered for said amount. On appeal to the Appellate Court for the First District the judgment was reversed and a judgment of nil capiat and for costs against the plaintiff was entered. The case has been brought to this court by writ of certiorari.

It appears from the record that the defendant is a corporation engaged in the wholesale shoe business in Chicago. Plaintiff lived at Austin, Illinois. January, 1909, the defendant hired the plaintiff as a traveling salesman under a contract which provided that he was to receive six per cent commission on all sales of leather goods and two and onehalf per cent on sales of rubber goods. He entered upon his employment and traveled in certain territory assigned to him in Illinois and worked until the latter part of May taking orders for goods, on which sales certain amounts were due him for commissions. During this time certain sums were advanced him from time to time as expenses, the aggregate of which, as subsequently claimed by defendant, exceeded the commissions he had earned by $487.95. In May, 1909, he was called in off of the road and had a conversation with the president of the defendant relative to his taking new territory. The plaintiff's claim is that his contract of employment was then terminated, and that after a parley with the president, in which plaintiff made the claim that the defendant owed him something like $300 or $400 and the president claimed that plaintiff was indebted to the company, they adjusted and finally settled the matter by paying him $50 in settlement of the dispute, and that the attachment suit was maliciously prosecuted by the defendant against him, and his land, worth $6000 and subject to a mortgage of $1000, sold to satisfy an alleged debt that the defendant knew did not exist. The defendant's claim is that the $50 was an advance to the plaintiff to permit him to go to his farm in Missouri to recuperate, after which he was to travel in territory assigned to him in New Mexico and Arizona; that shortly after his interview plaintiff entered the employ of another shoe company, thereby violating his contract, and that he owed the defendant the amount aforesaid, for which judgment in attachment was taken in the circuit court of Henry county, Missouri, and the land sold to pay the same; that the land was only worth about

$1600 and that plaintiff had it mortgaged at that time for $1000, and that the defendant failed to realize enough out of the land, after selling the same, to pay the judgment and costs, which amounted to something over $500. Both parties introduced evidence to sustain their respective claims.

The cause was tried in the circuit court upon a declaration of one count, setting forth, in substance, the following facts: That the plaintiff is a good and honest citizen of this State, has at all times demeaned himself as such, has never been suspected of being guilty of any fraudulent practices, and has deservedly enjoyed the good opinion and credit of all his neighbors and of other worthy citizens of this State and elsewhere prior to the grievances herein mentioned; that the defendant, well knowing the premises but contriving and maliciously intending to injure him in his good name and credit aforesaid, as well as to impoverish, oppress and ruin him, on the second day of September, 1909, in the county of Henry and State of Missouri, falsely and maliciously charged him, without any reasonable or probable cause, with fraudulently contracting a debt, and maliciously instituted said suit in attachment and obtained judgment therein against him, and without any reasonable or probable cause wrongfully and unjustly caused a special execution to issue for the sale of his land, etc.; that by the statute of the State of Missouri the defendant, by reason of the plaintiff being a non-resident of that State, was able to secure service upon him by publication of a notice in a weekly newspaper printed in the city of Clinton, in the county of Henry, purporting to notify him of the pendency of such suit; that by reason of the fact that the statute of such State did not require said defendant to state the residence of the plaintiff, and with a preconceived intention of concealing knowledge of or notice to the plaintiff of the pendency of such attachment suit, the defendant willfully and fraudulently failed to notify the plaintiff of such attachment suit but obtained service upon him as aforesaid, and

that plaintiff did not at any time until after the determination of such proceedings have any notice or knowledge thereof; that said suit was instituted and maintained to recover an alleged indebtedness of $498.25, the defendant well knowing that the plaintiff was not indebted to it in any sum whatever; and that by means of the said attachment proceeding, and the levy and sale thereunder, plaintiff was deprived of his said land, to his damage in the sum of $10,000.

Evidence was offered by both parties in support of their claims or contentions. Much space is given by each party in the briefs and arguments to the question whether or not the plaintiff proved by competent evidence the existence of the judgment in the attachment suit or of the proceedings in said attachment suit in the Missouri circuit court. Plaintiff argues that he made such proof by secondary evidence, which was not objected to on the ground that it is not the best evidence. Defendant argues that it made the proper cbjection to said evidence as being secondary but that the court overruled its objection, and that therefore the judgment was properly reversed for want of competent evidence upon said proposition. On appeal the Appellate Court disposed of the case upon said proposition in the manner aforesaid and in the opinion used this language: "This declaration, in legal effect, purported to charge that defendant maliciously prosecuted to judgment a suit against plaintiff in the courts of the State of Missouri with malicious abuse of process in that suit. * * *In the conclusion to which we have come it is not necessary to advert to the merits or demerits of the cause. That conclusion rests in the failure of plaintiff to maintain by proof either count of his declaration. In the first place, he failed to prove by competent evidence the existence of the judgment or of the proceedings in the Missouri court. Neither did he make any proof, by competent evidence, of the laws of the State of Missouri governing or controlling such proceedings." The