52 Ga. App. 633 | Ga. Ct. App. | 1936
J. E. Jordan brought suit for damages against the American Agricultural Chemical Company and C. J. Knight. Each of the defendants filed general and special demurrers, and their general demurrers were sustained. On these judgments the plaintiff assigns error.
Briefly, the contention of the defendants is that the petition attempts to set out a suit for damages for malicious use of a civil process (mortgage foreclosure), and that the petition failed to set out a cause of action. The plaintiff contends that “the gravamen of this suit is, however, not for the foreclosing of a mortgage, but for the forgery of the mortgage and the recording thereof, the effect of said forgery and recording being to destroy the financial credit of J. P. Jordan.” We can not agree to this contention. The petition as amended alleges that on March 18, 1931, the plaintiff purchased from the defendant company, which acted through Knight, its salesman and representative, a quantity of fertilizer and gave his notes therefor; that on May 6, 1931, Knight requested the plaintiff to secure the notes with a mortgage on his crops, which he did by giving a bill of sale; that on May 31, 1932, the defendant company filed suit for the indebtedness, and claimed more than was due; that the defendant company, acting through Knight, forged and uttered a certain mortgage or bill of sale pur
It is a fundamental rule that a petition should be construed most strongly against the plaintiff. But, without invoking this rule, the instant petition clearly shows that all the damage alleged to have been sustained was the result, not of the alleged forgery, but of the alleged “malicious foreclosure of the forged mortgage.” This being true, it was a suit for malicious use of a legal process, and
The petition does not allege that any damage resulted from “the forgery of the mortgage and the recording thereof,55 and it fails to allege a cause of action based on the malicious use of legal
Judgment affirmed.