McSwain v. Edge, 6 Ga. App. 9

McSwain v. Edge

6 Ga. App. 9 | Ga. Ct. App. | 1909

Powell, J.

This case comes up on an exception to the sustaining of a demurrer to the plaintiff’s petition. Omitting formal and immaterial allegations, the petition sets up, that the plaintiff had rented from the defendant a dwelling-house in the city of' Columbus; that her term had not expired and she was not in default with rent, when, on November 3, 1907, she was forcibty evicted from the house by a lawful constable of the county, upon a dispossessory warrant sued, out by the defendant before a justice of the peace, the defendant claiming that she owed him a small amount of rent. It is further alleged, that the defendant’s claim that the rent was due was untrue, and that the warrant-was sworn out and served maliciously and for the purpose of injuring and damaging the plaintiff; that at the time she was> evicted suitable houses were scarce, and she was put to great trouble and expense in securing one; that she was left houseless until eleven o’clock at night on the day of the eviction, and, on •account of the exposure thus incurred, she suffered bodily pain and contracted cold, from which an illness ensued, with which she was still suffering at the time of bringing suit.

1. The general demurrer specifies, as the particular reasons why no cause of action is set forth, that there is no avermentthat the defendant acted maliciously and without probable cause; also that it is not alleged that the suit instituted by the defendant against the plaintiff had terminated. The action is based on the malicious use of civil process. In such cases it must appear that the former action was prosecuted maliciously and without probable cause, and that it is no longer pending. We think that all three of these elements appear from the present petition. The allegation that the dispossessory warrant was maliciously sworn out is directly and unequivocally made. From the alleged facts-that the plaintiff was a tenant, that her term had not expired, and that her rents were paid, it prima facie appears that the warrant- was prosecuted without probable cause. Since it further appears that the warrant was executed and the eviction completed, it follows that the action begun under it is no longer pending; for after eviction there is no way provided by law for arresting the process or for converting it into mesne process, or for the-*11forming of an issue thereon otherwise. Sturgis v. Frost, 56 Ga. 188; Crusselle v. Pugh, 71 Ga. 744. The case of Sturgis v. Frost is on all-fours with the present one. The case of Clements v. Orr, 4 Ga. App. 117 (60 S. E. 1017), is distinguishable from the one sub judice by reason of the fact that the distress warrant, for the suing out of which that suit was instituted, had been converted into mesne process by the filing of the statutory counter-affidavit, and it did not appear that the issue thus formed had ever terminated. In the present instance no such issue had been formed, and all the reasoning of Judge Bleckley in the case in 56 Ga. is applicable. It therefore follows that the judge erred in sustaining the general demurrer.

2 Where a court at one and the same time passes upon a. demurrer containing both general and special grounds, and sustains the demurrer and dismisses the action, without giving the plaintiff opportunity to amend, the judgment will be reversed if it appears that the general demurrer was improperly sustained. The proper judgment on a special demurrer, going only to the-meagerness of the allegations, is not a peremptory judgment of dismissal of the action, but a judgment requiring the plaintiff' to amend and to make his petition more certain in the particulars, wherein he has been delinquent; and then if he refuses to amend,, the petition may be dismissed, if the delinquency relates to the entire cause of action. However, if the special demurrer goes only to some particular part of the petition, without which a valid cause of action would still be set forth, the result of finally sustaining the special demurrer would be, not to dismiss the action, but to strike the defective portion. This is also the proper-course where the special demurrer attacks some particular portion of the pleading for irrelevancy or impertinence. Bor example, in the present case there was a special demurrer to thé*" third and fourth paragraphs of the plaintiff’s petition, in which it was alleged that the defendant had previously sworn out another dispossessory warrant, and had failed to have it executed, and the special demurrer was to the irrelevancy and impertinence of this allegation. Let it be admitted, for the sake of argument, that this special demurrer was well taken, yet a judgment dismissing the entire petition should not follow; only these paragraphs should be ordered stricken. As a matter of fact, however, *12in the present case the contents of the paragraphs of the petition thus attacked, when considered in connection with the other allegations of the petition, were not irrelevant, being properly alleged by way of inducement and aggravation of the specific cause of action declared upon. Indeed, we find only one of the special demurrers well taken, — the one in which the insistence is made that the nature of the rent contract and its terms and expiration are not distinctly set forth. Direction is given that the court require the plaintiff to make the allegation specific and definite in this respect. Judgment reversed, with direction.