45 Ga. App. 395 | Ga. Ct. App. | 1932
The Court of Appeals certified to the Supreme Court the following questions:
1. “In an action for damages for malicious use of process, where a cause of action is otherwise set out, but where the petition alleges 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 suit, ‘being without means at the time of giving the bond required by law in such cases/ and thereupon ‘the said suit was marked settled and satisfied and was terminated/ does the petition
2. “Can it be said that the issuance of bail process in a trover case, valid on its face, was a malicious abuse of legal process, where upon the arrest of the defendant and upon her failure to give the bond or produce the particular property sued for the defendant paid and the plaintiff received the alleged value of the property sued for in settlement of the suit, where it is also alleged that the real purpose of the process was not to recover the property sued for but to collect the value thereof, and where it is alleged that the defendant, being unable to give the bond, paid the value of the property and costs of suit while in legal custody rather than go to jail, although she had never possessed the property sued for and had never owed the plaintiff in the trover suit anything; where it is not alleged, as in Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276 (62 S. E. 222), that the defendant had been thus coerced into surrendering other property than that specifically sued for, or that the process had been employed to force the defendant in the trover suit to enter into a new and different contract in regard to the alleged debt involved; and where it is not alleged, as in King v. Yarbray, 136 Ga. 212 (71 S. E. 131), that the process was employed for a purpose not legally permissible ? In other words, can there be said to be a perversion of a legal process regularly sued out and valid on its face, where the settlement of the suit results in the plaintiff receiving the particular property sued for or its equivalent in money? See Robinson v. Commercial Credit Co., 37 Ga. App. 291 (139 S. E. 915).”
The Supreme Court answered each' of these questions in the negative, as follows:
“1. In an action for damages for malicious'use of proeess, where a cause of action is otherwise set out, but where the petition alleges 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
“2. The second question of the Court of Appeals is answered in the negative. This court will not look into the record to determine whether this question is adjusted to the ease actually made by the pleadings in the cause pending.”
After the questions were certified and after argument thereon in the Supreme Court, the defendant in error as to the second count (plaintiff in the court below), made a motion before this court, requesting that the second question (that is the one relating to the second count of the petition alleging a malicious abuse of legal process), be amended or reframed, for the reason that the defendant in error (plaintiff in the court below) did not feel that the question as framed by this court presented all the material and essential allegations set forth in the second count of the petition. This motion was denied, but in the order overruling the motion it was provided that supplemental briefs might be filed when the questions were answered by the Supreme Court.
In the opinion dealing with the answer to the second question, the Supreme Court said: “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 question 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.”
■ The Supreme Court having held that the petition did not show
“The second question certified by this court to the Supreme Court relates to the second count of the petition, being the count to which the demurrer was overruled in the lower court. It is respectfully submitted that the question certified by this court to the Supreme Court did not cover the case as made by the second count of the petition as amended, but that the question as framed omitted certain material facts as set out in the second count of the petition. The substance of the second count of plaintiff’s petition is that while she did not have, and never had, possession of any property such as was sued for by Davison-Paxon Company, and had no contract relations with Davison-Paxon Company, and never owed that company anything, and Davison-Paxon Company had no bona fide pretense of a claim against her, it instituted a bail-trover proceeding against her
After this presentation of their contentions with reference to the certified question, the able and learned counsel for the plaintiff in the court below, who is defendant in error in this court as to the second count, present their legal argument that despite the answer of the Supreme Court to the question dealing with the second count, under the law and under the allegations of the second count as embraced in the petition, a cause of action setting forth a malicious abuse of legal process was stated. What seems to be a summary of this contention is quoted from the brief as follows.: “While, of course, the bail-trover process under our law is a legitimate process to be employed for the purpose of recovering property or the money equivalent • thereof, it can not be legitimately employed for the purpose of forcing one, under duress, to pay money for which such person is not liable and for which the plaintiff in the process has no bona fide pretense of a claim against the person proceeded against, and the fact that such person, acting under the influence of duress, pays money, is no reason why the wrong-doer should escape liability.”
Counsel for the plaintiff in the court below, as well as counsel for the defendant, in their supplemental briefs, complain that the second question submitted indicates that there was a settlement of the suit ■ between the parties, whereas counsel on .both sides state the value of the property sued for-was paid to the arresting officer and not directly to the plaintiff in the former action. We are unable to see any legal distinction between the allegation of the petition and the question- as submitted. The question sets forth, as the
Counsel for the plaintiff complain that the question sets forth the fact that the petition “also alleged that the real purpose of the process was not to recover the property sued for, but to collect the value thereof,” whereas the petition states that the action was not brought in good faith, but was instituted for the purpose of “compelling and forcing petitioner under duress to pay to defendant the sum of $190.68.” It will be seen by reference to the question itself that it clearly sets forth plaintiff’s contention, in that the question states that it was alleged by the petition that “the real purpose of the process was not to recover the property sued for but to collect the value thereof, and where it is alleged that the defendant, being unable to give the bond, paid the value of the property and costs of suit while in legal custody rather than go to jail, although she had never possessed the property sued for and had never owed the plaintiff in the trover suit anything.” While the question did not make use of the particular word “duress,” it set forth in the strongest language possible the facts alleged in the petition, rather than the conclusion drawn therefrom by the pleader. There is no contention that the $190.68 paid was excessive in amount, as being more than the value of the property.
As set forth in Robinson v. Commercial Credit Co., supra, and quoted with approval by the Supreme Court: “Malicious abuse of legal process is where the plaintiff in a civil proceeding wilfully misapplies the process of the court in order to obtain an object which such a process is not intended by law to effect, as contradistinguished from malicious use of process, where the plaintiff in a civil proceeding employs the court’s process in order to execute an object which the law intends such a process to subserve, but proceeds maliciously and without probable cause.” Accordingly, in framing the first question dealing with the count for malicious use, the allegations of malice and lack of probable cause were assumed, and
It will be noted that counsel in their brief concede as a matter of course that “bail-trover process, under our law, is a legitimate process to be employed for the purpose of recovering property or the money equivalent thereof.” Since the second count of the petition shows that the only purpose the process in the previous action subserved was to recover the money equivalent of the property sued for, it fails to. set forth any perversion, misuse, or abuse of the process, even though elements essential to an action for malicious use of process may have been embodied in the count for malicious abuse of process. The second count charging malicious abuse of legal-process indicates a lack of probable cause, even going to the extent of alleging a lack of any sort of bona fide claim. What it failed to allege, however, was that the process was employed for any purpose which the law does not intend for such a bail-trover process to subserve, that is, any purpose other than that of recovering the particular property sued for or the money equivalent thereof. Bearing continually in mind the distinction between an action for malicious use of process and an action for malicious abuse of - process, and when dealing with the latter form of action as we are now doing, if, as we have already quoted from the Supreme Court, where a prosecution is in itself regular, the motive, ulterior or otherwise, is immaterial, it matters not how strongly the allegations might be made as to the lack of probable cause and good faith in ■ the institution thereof, since, in order to maintain an action for malcious abuse of process, as distinguished from malicious use of process, it must be shown that the process of the court was maliciously abused, misused, or perverted so as to accomplish an object or purpose which the law does not intend such a process to effect.
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill.