111 Ga. 260 | Ga. | 1900
This was a suit brought by the Fulton Grocery Company, a corporation, against J. J. & J. E. Maddox, L. B. Jackson, Kelly Brothers, a firm composed of Edgar S. and Kendrick K. Kelly, and Mrs. Ida Humphries. The petition, though loosely drawn and somewhat vague in its allegations, made substantially the following case: The defendants entered into a malicious conspiracy for the purpose of breaking up petitioner’s-business, in order that they might obtain possession of its stock
Counsel for the plaintiff in error contends that the petition set forth a cause of action in trespass, and that therefore the plaintiff’s right of action was complete the moment its goods were seized, and for this reason the court erred in sustaining a general demurrer to the petition. Counsel for the defendant in error contends that if the facts alleged in the petition give to the plaintiff any right of action at all, it is one for the malicious prosecution of a civil suit, and that the petition was fatally defective for the reason that it failed to allege that the suit claimed to have been maliciously carried on without probable cause had terminated in favor of the plaintiff before the filing of the present action, and that therefore the court rightly dismissed the case on a general demurrer filed to the petition. The case made by the petition is simply this: The defendants have obtained a mortgage upon the property of the plaintiff, signed by one who is a stockholder in the company, and they have sought to enforce this mortgage by a proper foreclosure proceeding. The plaintiff says that the person who signed this mortgage in behalf of the company had no authority to execute the same. The foreclosure of a chattel mortgage obtained under such circumstances is nothing more nor less than a civil suit, and the consequences which result to the plaintiff from bringing such a suit will be the same as would have flowed from the bringing of any other civil action. Before the plaintiff would be liable to the defendant for any damages growing out of the institution of such foreclosure proceeding, it must appear that it was instituted maliciously and without probable cause. In the case of Porter v. Johnson, 96 Ga. 148, Chief Justice Simmons, in referring to the subject now under discussion, says: “So far as I know, no respectable court in this country has ever held that an action will lie against a person for having brought an action against another, unless he did so with malice and without probable cause. If the law were otherwise,
The petition does not, however, allege that the foreclosure proceedings had terminated in favor of the plaintiff in - the present case. The petition does allege that the “petitioner obtained bond and stopped the illegal proceedings that they had instituted against the plaintiff company.” An execution issued upon the foreclosure of a chattel mortgage may be-stopped''by giving a bond in two ways, first by an affidavit of illegality filed by the defendant in execution, and, second, by a claim to the property filed by one who is not a party to the exfe'cútioá. It is true that the defendant in execution may, 'without-filing an affidavit'of illegality, give to’ the sheriff a bond to have the property forthcoming at the time and place of sale, but such ¡a forthcoming bond does not “stop” the proceeding but merely obligates the defendant to have the property on- hand to-be sold when the day of sale arrives. As the allegation is that the-plaintiff obtained bond and stopped the illegal proceedings, but one conclusion can be reached, and that is that the defendant filed an affidavit of illegality, and that the bond given was the one required in such -cases. Of course the defendant in execution could not interpose, a claim to the property. Wynn v. Ir
The petition can not be sustained as one setting up a cause of action' in trespass for wrongfully seizing the goods of the plaintiff. Counsel for the plaintiff in error contends that the suit is maintainable as one for trespass, under the decisions rendered in Baker v. Boozer, 58 Ga. 195, Printup v. Smith, supra, and Holton v. Taylor, 80 Ga. 508. In the cases of Baker v. Boozer and Holton v. Taylor it was held that where an execution was levied upon personal property which did not belong
We do not think that the petition could be maintained as one setting forth a cause of action in trespass. The language used in the petition clearly indicates that the purpose of the pleader was to set forth a cause of action for malicious prosecution of a, civil suit, and we think that if he has any cause of action at all
Judgment affirmed.