174 Ga. 532 | Ga. | 1932
We are of the opinion that the first question should be answered in the negative. In a suit for malicious use of process “it is well settled that the plaintiff must allege three things: (1) that the suit against him was malicious; (2) that it was without probable cause; and (3) that it had terminated in his (plaintiff’s) favor before the suit for damages was filed.” Clement v. Orr, 4 Ga. App. 117, 118 (60 S. E. 1017); Marable v. Mayer, 78 Ga. 710 (3 S. E. 429). Allegations of a petition, in a suit for malicious use of process, that the former suit was an action of bail-trover, and that after the plaintiff had been arrested by an officer who was required by law to execute the process she regained her liberty by paying an amount equal to the value of the property sued for and the costs of the suit, “being without means at the time to give the bond required by law in such cases,” and thereupon the suit against plaintiff was marked “settled and satisfied and terminated,” do not sufficiently show, as against a general demurrer, that such former action terminated in favor of the defendant therein. The suit being marked “settled and satisfied and terminated” indicates rather the contrary result, that is, that the former action terminated in favor of the plaintiff.
We are of the opinion that a negative answer should also be given to the second question. In Robinson v. Commercial Credit Co., 37 Ga. App. 291 (supra), which was a suit for malicious abuse of process, it was said: “It is alleged by the petition in the present suit that the present defendant sued out bail-trover process against
These rulings by the Court of Appeals of this State are sup
In the brief of counsel for defendant in error it is insisted that the facts in the instant case make a case, in essential elements, almost identical with that of Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276 (supra). But there are essential differences between that case and this. In the Brantley case it was said: “As amended, the petition alleged that the affidavit to obtain bail process was made maliciously and without probable cause, and for the purpose of forcing plaintiff in the present case to give up a certain piece of jewelry which' she wore on her person, and to compel her to pay a certain debt. And again it was alleged that the purpose of the process was not to obtain the furniture or bond, but to coerce payment; and that it was used for the purpose of having her arrested and compelling her, while under arrest, to surrender a piece of jewelry as security, and to sign a paper agreeing to pay $10 per month until the balance due on the furniture which she had bought should be settled. The legitimate purpose of making an affidavit to require bail in an action to recover personal property is to require bond to be given for the forthcoming of the property to answer such judgment, execution, or decree as may be rendered or issued in the case, or, on failure thereof, to have the officer seize the property, or, if it is not to be found, to have the defendant committed to jail until the property shall be pro
In the brief of counsel for defendant in error it is suggested that the question propounded by the Court of Appeals does not fairly state the case made by the record, and that this court should read the second question propounded by the Court of Appeals in the light of the facts set forth in the second count of the petition, and should decide the case, not upon the question as propounded, but upon that question as it should be modified in view of the allegations in the petition. This court will not go into the record for the purpose of determining whether the Court of Appeals has submitted a proper question or not, in view of the issues in the case, but will decide the questions as propounded. The answer of this court is binding upon the Court of Appeals as to the question of law made by the question propounded; but if the question is not properly framed so as to deal with the real issue in the record, the Court of Appeals is still left to decide the case as made by the pleadings.