46 Ga. App. 739 | Ga. Ct. App. | 1933
Mrs. Fred B. Thompson sued the Haverty Furniture Company for damages on account of chattel-mortgage foreclosure proceedings by the company against her when the mortgage debt had been fully paid and satisfied, alleging that her property
1. Properly construed, this was an action for the malicious use of legal process. Where the property of a person is seized under a valid process issued against her, malice, want of probable cause and determination of the proceedings in favor of the defendant in the action must all be alleged and proved, to support such an action. Fulton Grocery Co. v. Maddox, 111 Ga. 260, 262 (36 S. E. 647); Porter v. Johnson, 96 Ga. 145, 148 (23 S. E. 123); Clement v. Orr, 4 Ga. App. 117 (60 S. E. 1017); Marable v. Mayer, 78 Ga. 710 (3 S. E. 429); Hyfield v. Bass Furnace Co., 89 Ga. 827 (15 S. E. 752); Mullins v. Matthews, 122 Ga. 286, 289 (50 S. E. 101).
3. Where there is a total want of probable cause, it is a circumstance from which malice may be inferred. Civil Code (1910), § 4444; Dannel v. Shirley, 31 Ga. App. 764 (3) (122 S. E. 252); Hicks v. Brantley, 102 Ga. 264 (29 S. E. 459); Lockett v. Gress Mfg. Co., 8 Ga. App. 772 (70 S. E. 255); Stewart v. Mulligan, 11 Ga. App. 660 (75 S. E. 991); Southwestern R. Co. v. Mitchell, 80
3. Want of probable cause in a civil proceeding exists when the circumstances are such as to satisfy a reasonable and prudent man that he has no ground for suing out the civil proceeding. Civil Code (1910), § 4440; Harber v. Davison-Paxon Co., 46 Ga. App. 457 (167 S. E. 781). Where plaintiff had purchased a rug from the defendant on credit and executed a chattel mortgage to secure the unpaid purchase-money, and thereafter paid the same in full, receiving from' the defendant its receipt in full; and thereafter the defendant instituted chattel-mortgage foreclosure proceedings against the plaintiff in a justice’s court, alleging a balance due on the purchase-price of the rug, and caused a levy on the rug to be made, this made a prima facie case of total want of probable cause. The fact that the defendant offered the excuse for suing out the proceedings that it was an honest mistake on its part, and that on discovery of the mistake it dismissed the proceedings, does not show of itself that the defendant acted in good faith and for justifiable ends, and does not show the existence of such facts and circumstances, although not amounting to probable cause, as were calculated to produce at the time in the mind of a prudent and reasonable person a well-grounded belief of the plaintiff’s liability. See Hicks v. Brantley, supra; 38 C. J. § 70, 427.
5. The original process had been lost and the defendant’s attorney had prepared what purported to be a copy thereof and submitted it to the justice of the peace in whose court the action was instituted, and'he certified the same as being a correct copy. On the trial the plaintiff proved by the justice that he issued the process and gave it to his bailiff to serve and levy. The court then admitted, over objection of the defendant, the evidence of the justice of the peace to the effect that he signed the certified copy, but that he did not have anything to go by except that the attorney for the defendant said he had seen the original and that he had made a copy thereof, and to the effect that the justice did not notice that the copy was not signed. This evidence was not inadmissible on the ground that there was no evidence before the court to rebut the correctness of the certified copy, and that such evidence was improper to vary and contradict the contents of such certified copy.
6. The court properly admitted in evidence the docket of the justice of the peace showing the entry of the mortgage-foreclosure proceedings instituted by the defendant against the plaintiff, and the entry of the subsequent proceedings therein. This was not inadmissible because of not being the highest and best evidence. The certified copy of the process was in evidence, showing that the process was not issued by the justice of the peace. The justice testified that he issued the process. It follows that the evidence does not uncontradictedly show that the process in this case was void because not signed by the justice of the peace.
7. Applying the foregoing rulings, the court properly overruled the motion for new trial, on all the grounds thereof.
Judgment affirmed.