37 Ga. App. 291 | Ga. Ct. App. | 1927
Tlie plaintiff brought suit for damages on account of an alleged “malicious use or abuse of process” in the maintenance of an action in bail-trover against him by the present defendant. The petition was not specially demurred to as being duplicitous, but it appears from the certificate of the judge in the present record that the plaintiff admitted in open court that he did not claim a right of action for malicious use of process, but relied exclusively upon the claim of a malicious abuse of process in the maintenance of the trover proceeding. It is alleged by the petition in the present suit that the present defendant sued out bail-trover process against the plaintiff, to recover a certain automobile to which it claimed title, and that such process was sued out, not for the" purpose of recovering the property, but for the purpose of “collecting the balance due on said automobile;” and that the.present plaintiff, by reason of his having been unable to give security as provided by law, was arrested under the bailtrover proceeding and held .in jail until he paid the balance due.
The allegations of the petition did not set forth an abuse of legal process. Malicious abuse of legal process is where the plaintiff in a civil proceeding wilfully misapplies the process of the court in order to obtain an object which such a process is not intended by law to effect, as contradistinguished from malicious use of process, where the plaintiff in a civil proceeding employs the court’s process in order to execute an object which the law intends such a process to subserve, but proceeds maliciously and
The court did not err in sustaining the general demurrer to the plaintiff’s petition.'
Judgment affirmed.