122 Ga. 286 | Ga. | 1905
E. H. Mullins brought an action against M. E. Matthews and others, returnable to the July term, 1898, of the city court of Atlanta. At the March term, 1904, the defendants made an oral motion to dismiss the case on two grounds: “ (1) That [the petition] does not set forth a cause of action against the defendants. (2) That the alleged four counts in the declaration do not, each or any one of them, present a complete cause of action set forth in distinct and orderly paragraphs as required by law.” The court thereupon passed the following order: “ The motion is sustained on the second ground, and the case will stand dismissed unless,-within ten days from this date, the plaintiff, amends sufficiently as to matters in said ground complained of.” Plaintiff failed to.amend within the time prescribed by the order, and thereafter excepted to the granting of the same.
We have no hesitancy in ruling that the petition set forth, in substance, a cause of action for'the malicious abuse of legal process. “ There is a malicious abuse of process where a party employs process legally and properly issued, wrongfully and unlawfully for a purpose which it is not intended by law to effect; and for such malicious abuse of civil or criminal process an action will lie against the plaintiff or the officer responsible for the abuse.” 19 Am. & Eng. Enc. L. (2d ed.) 630; Newell on Malicious Prosecution, § 7; Porter v. Johnson, 96 Ga. 145. If the allegations of the petition be true, and they must be so considered in passing upon the motion in the nature of a general demurrer, then, all the defendants were hable for the abuse of the process. It is true that it appears from the petition that a replevy bond was given for the property levied on under the distress warrant, and, presumptively, this was done in connection with the making of an affidavit that the sum distrained for, or some part thereof, was not due, thus .converting the distress warrant into mesne process and making an issue to be tried in the proper court; and it is also true that there is no allegation in the petition that such proceedings had terminated. Such an allegation was not essential. It is a well-established rule that an action for damages for the malicious abuse of legal process may be maintained before the action in which such process was issued is terminated. 19 Am. & Eng. Enc. L. (2d ed.) 632, and cases cited. See also Montague v Cummings, 119 Ga. 141. A different rule applies in an action for the malicious use of legal process, where no.object is contemplated to be gained by such use other than the proper effect and execution of the process. In such case it is necessary to allege malice, want of probable cause, and that the action on which the process issued has been finally determined in favor of the defendant therein. Newell on Malicious Prosecution, § 7; Marable v. Mayer, 78 Ga. 710; Hyfield v. Bass Furnace Co., 89 Ga. 827; McDaniel v. Nelms, 96 Ga. 366; Fulton Grocery Co. v. Maddox, 111 Ga. 260. In the ease last cited the action was treated as one “ for malicious prosecution of a civil action.” In Woodley v. Coker, 119 Ga. 226, it was said that, “accurately speaking, and especially under