This is an appeal from the dismissal of plaintiff’s complaint in the trial court. Plaintiffs, William and Ann Cooper, executed a security agreement and note with Public Finance Corporation. They failed to make the necessary payments. Public Finance forwarded the matter to its attorney, Robert A. Sneed. On March 19, .1975, after receiving no response to his request for payment letter, Mr. Sneed filed a complaint on behalf of Public Finance against the Coopers in the State Court of BeKalb County and took a default judgment on June 18, 1975, when the Coopers failed to answer. Thereafter the Coopers paid the amount of the judgment to Mr. Sneed, except for a few dollars.
On December 21, 1976, the Coopers filed an action against Public Finance, Mr. Sneed, and his firm, in the Superior Court of DeKalb County in which they sought "judgments against the defendants. . . for all sums collected by the defendants from the plaintiffs pursuant to the void and illegal loan transactions. . . [That every customer of Public Finance] be notified of this action. . . [and] the plaintiffs receive for the use of and benefit of each and every member of the class... the sum of $25,000 for each such member as punitive damages. . .” This was Civil Action 97243 in DeKalb Superior Court.
On December 29, 1976, the Coopers filed this action, Civil Action 97347, in DeKalb Superior Court, seeking judgment against Public Finance Corporation, Mr. Sneed, and his firm, to "set aside and declare null and void the judgment of the State Court of DeKalb County. . . [and] That they have and recover against the defendants jointly and severally judgment for [the amount they had paid Mr. Sneed] plus all court costs. . . plus punitive damages against the defendants in the sum of $750,000.00. . . ”
On the same date that plaintiffs filed the second action they filed an amendment in the first suit striking Mr. Sneed and his firm as defendants, leaving only Public Finance Corporation as a common defendant in both
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actions. In the first action plaintiffs appealed from a dismissal of their complaint. This court reversed and remanded. See
Cooper v. Public Fin. Corp.,
In this action defendants’ answers contained numerous defenses, including prior pending action, failure to state a claim and voluntary payment. Defendants’ motions to "dismiss and/or strike” were granted. Plaintiffs bring this appeal. Held:
1. We shall address the issues involving Public Finance first. Plaintiffs contend that under Code § 3-114 (as amended Ga. L. 1967, pp. 226,247) they have a right to "pursue any number of consistent or inconsistent remedies until [they] shall obtain a satisfaction from some of them.” Thus, they argue that it is permissible to bring separate actions against the same defendant until they obtain a satisfaction. . .” Public Finance contends that under Code § 3-601 "[n]o suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party ... and the pendency of the former shall be a good defense to the latter, if commenced at different times.”
Code § 3-114 provides a general remedy for a plaintiff to obtain satisfaction by using consistent or inconsistent remedies against one or more defendants until a judgment is satisfied. See
Cox v. Travelers Ins. Co.,
The same suitor here, the Coopers, did initiate two actions against the same party, Public Finance, in the same court — at different times. The only remaining issue is whether these two actions involved the "same cause.”
A "cause of action” is "the right to bring a suit.”
Atlantic C. L. R. Co. v. Tifton Produce Co.,
Other states have adopted a rule that separate actions involve the "same cause” within a dismissal statute where the relief requested relates to substantially the same set of facts. Sidwell v. Sidwell,
Other states apply a rule that the cause of action is the same when the same evidence will support both actions, or rather the judgment in the former action will be a bar, provided the evidence necessary to sustain a judgment for plaintiff in the present action would have authorized a judgment for him in the former action. Rhodabarger v. Childs,
We conclude, as to defendant Public Finance Corporation, both suits were based on the same cause of action and the pendency of the former action at that time was a bar to prosecution of this action. The trial court did not err in dismissing the complaint.
2. Plaintiffs’ complaint alleged that Mr. Sneed caused a fi. fa. to be issued and recorded on the general execution docket and also caused to be issued "a garnishment upon the wages” of Mr. Cooper — one of the plaintiffs. Further, that "through garnishment process, the defendants collected the amount of said judgment” and "by causing execution to issue. . . and causing garnishment to issue” the defendants had "maliciously and wilfully abused the process of the law.”
In later paragraphs of the complaint, plaintiffs charged defendants "intentionally and deceitfully” caused a fi. fa. to issue, "knowing. . . there existed no probable cause, right or justification to cause said property to be levied upon or garnished.” These terms are characteristics of actions based on malicious use and malicious abuse of process.
The terms "malicious prosecution,” "malicious use of process,” and "malicious abuse of process” are frequently confused and commingled. Each is separate and distinct and possesses elements not found in the other.
Rivers v. Dixie Broadcasting Corp.,
Malicious
abuse
of civil process, as con-tradistinguished from malicious
use
of civil process, lies when the plaintiff in a civil proceeding wilfully misapplies process of the court in order to obtain an objective such process was not intended by law to achieve.
Braswell v. Mason Kominers Tire Co.,
In malicious abuse of process actions there must be an ulterior motive on the part of the plaintiff to employ the process for a purpose for which it was not designed,
coupled with an improper act
in the use of such process
after it has issued
which amounts to its perversion to some unlawful purpose.
Landers v. Ga. Public Service Comm.,
In plaintiffs’ complaint they used terminology which could be interpreted to indicate they were claiming both malicious use and abuse of process. In fact and in law, *255 neither will lie in the instant case.
Malicious use of process did not lie because the first action had not terminated in favor of the present plaintiff when he brought his second action. Malicious abuse of process will not lie if the alleged improper use of process did not occur after it issued. Plaintiffs allege only that a fi. fa. and garnishment issued and was executed. However, since the motion of defendants to dismiss this action included evidence in an affidavit and involved an allegation of failure to state a claim, the motion must be "treated as one for summary judgment and disposed of as provided in section 81A-156.” CPA § 12 (b); Code Ann. § 81A-112 (b) (Ga. L. 1966, pp. 609, 622, as amended through 1972, pp. 689, 692, 693).
Mr. Sneed stated in his affidavit that "[n]o garnishment proceedings were ever filed” and "[n]o proceedings to enforce the execution were ever instituted, nor were Plaintiffs threatened with execution.” Further, Mr. Sneed claimed all payments were voluntary. Plaintiffs’ pleadings were pierced by this evidence and he failed to file any rebuttal evidence — or any evidence for that matter. "Once the motion is supported by evidentiary matter showing a prima facie right in the movant to have judgment rendered in its favor, the duty is placed upon the opposing party to show the existence of a genuine issue of fact.”
Goldsmith v. American Food Services,
Defendant’s evidence showed there was no malicious use or abuse of process and that all payments by the plaintiffs were voluntary. Voluntary payments began after suit was filed — before judgment, and continued after judgment until the debt was discharged — except for a few dollars. Under the facts of this case, such, voluntary
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payments cannot be recovered back (Code § 20-1007) unless within an exception stated in the Code. See
Williams v. Rentz Banking Co.,
3. Plaintiffs alleged that defendant Sneed "wilfully, flagrantly and maliciously defrauded the plaintiffs” in that he filed the action against plaintiffs knowing it "would serve merely to harass or maliciously injure another [and] [k]nowingly advance[d] a claim. . . that [was] unwarranted under the existing law” in violation of Disciplinary Rule 7-102 of the Code of Professional Responsibility for attorneys of the State Bar of Georgia.
The record shows that in the original action by Public Finance against the Coopers, the amount sued for was "the sum of $326.46 being principal due on a note...” Mr. Sneed’s affidavit, in support of his motion for summary judgment, showed that he "only sought to recover their principal amount due on a note ... and attorneys fees ...” That suit was filed on March 19,1975. This court decided
Hodges v. Community Loan &c. Corp.,
Judgment affirmed.