Andrews v. Mitchell

| Ga. | Oct 30, 1893

Simmons, Justice.

1. This was an action to recover damages for the wrongful and malicious suing out and execution of a warrant to dispossess the plaintiff of certain premises; and to the declaration filed in the case was attached a copy of the affidavit and warrant, the affidavit being sworn to by Manley as agent of Mrs. Mitchell. The defendants filed a special plea, which is set out in the first head-note. The question is, whether this plea is a plea of justification, or a plea of the general issue or not guilty. At the trial the court below held that it was a plea of justification, but upon a motion for a new trial, reversed this ruling. We think the court erred in holding the former ruling erroneous. A plea of the general issue, or not guilty, to an action of this kind, is a denial of the allegations in the plaintiff’s declaration, and no other evidence is admissible under that plea except such as disproves the plaintiff’s cause of action. Code, §3458. Under such a plea the facts set up by the defendants in this case could not have been proved. In order to introduce these facts it was necessary to file a special plea. A plea of justification admits that the act complained of was done, but sets up that the defendant was authorized by law to do the same. Code, §3051. In this case the plea admits that a warrant was sued out, that it ivas executed by dispossessing the plaintiff of the premises m dispute, and also sets out the facts which led to the suing out and execution of the warrant, and claims that the defendants were authorized by law, under these facts, to have a warrant issued and executed, and that they did so in good faith and without malice and with probable cause. While the plea does not state in so many words that they were justifiable in so doing, yet from the matter set out, justification is plainly implied or inferable. We therefore think the plea is in substance a plea of justification. Rigden v. Jordan, 81 Ga. 668, and cases there cited; Stephen on Pleading, 9th Am. ed., p. 109 et seq. If in the opinion of counsel the plea was not sufficiently full and certain as to some of the admissions contained therein, he should have demurred specially thereto, so that it could have been amended in those respects; hut upon a general demurrer, the court was right in the first instance in holding it a plea of justification. The case of Phelps v. Thurman, 74 Ga. 837, is distinguishable from this case. In that case the plea did not admit that the warrant was executed, but merely stated that the defendant was authorized by law to have it executed, and was justified in taking out the same; and it failed to set out any facts to show upon what the defendant relied as justification. See Rigden v. Jordan, 81 Ga. 671, where the case here referred to is distinguished.

2. One of the grounds of the motion for a new trial was newly discovered testimony. Some of this testimony disclosed important and material admissions by the plaintiff, inconsistent with his right to recover; and they were not merely cumulative, or of an impeaching character. This being true, the court did not abuse its discretion in granting a new trial on this ground.

Judgment affirmed.