146 Ga. App. 146 | Ga. Ct. App. | 1978
1. This is an appeal from an order of the trial court dismissing the complaint for failure to state a claim for fraud upon which relief can be granted. In view of the new rule announced in Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974), this court is unable to affirm the judgment below but must reverse with direction to
2. The counterclaims alleging that the complaint was filed and is being used wilfully and maliciously for improper purposes and without probable cause should have been dismissed on plaintiffs motion therefor since they are premature. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835 (175 SE2d 910) (1970); Prairieland Broadcasters v. Thompson, 135 Ga. App. 73, 74 (3) (217 SE2d 296) (1975).
Judgment reversed with direction.