182 Ga. 544 | Ga. | 1936
B. D. Simpson brought his petition against W. G. Jones and E. Gunter of Dougherty County, and E. M. Harris of Baker County, alleging substantially as follows: In
1. Malicious use of legal process is where a plaintiff in a civil proceeding employs the court’s process in order to execute the object which the law intends for such process to subserve, but proceeds maliciously and without probable cause. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein. McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190); Roberts v. Willys-Overland Inc., 27 Ga. App. 304 (108 S. E. 138); Wilcoxon v. Equitable Loan Co., 48 Ga. App. 250 (172 S. E. 682); Marable v. Mayer, 78 Ga. 710 (3 S. E. 429); Sparrow v. Weld, 177 Ga. 134 (169 S. E. 487). It not appearing in the present case that the previous litigation has finally terminated against the plaintiff therein, and in favor of the present plaintiff, the petition fails to set forth a cause of action for malicious use of process.
2. Malicious abuse of legal process is where a plaintiff in a civil proceeding wilfully misapplies the process of a court in order to obtain an object which such process is not intended by law to effect. McElreath v. Gross, supra; King v. Yarbray, 136 Ga. 212 (71 S. E. 131). “If the purpose and effect of suing out the process had been to maliciously injure, harass, and humiliate the plaintiff, and it had been instituted without probable cause, but not actually put to some unauthorized use, there would have been a malicious use of a legal process; but in order for there to be a
3. The annexation of the affidavit of foreclosure to the mortgage (bill of sale) or a verified copy is directory, and its omission does not void the fi. fa. issued pursuant thereto. Bosworth v. Matthews, 74 Ga. 822; Thigpen v. Vidalia Chemical Co., 42 Ga. App. 563 (156 S. E. 635). Code of 1933, § 67-901.
4. The affidavit of foreclosure, and other proceedings to foreclose mortgages on personalty, including the fi. fa., are amendable to the same extent as ordinary suits. Code of 1933, § 81-1203; Burgwyn Tobacco Co. v. Bentley, 90 Ga. 508, 516 (16 S. E. 216); Ragan v. Coley, 4 Ga. App. 421 (61 S. E. 862).
5. The record being incomplete as to the contents of the affidavit of foreclosure, which is the basis of the jurisdiction of the court issuing a fi. fa. thereon, and it not being attacked as insufficient for any reason, it will, as against the plaintiff, be presumed to state sufficient facts and to be in the proper form upon which to base the foreclosure and the issuance of the fi. fa. against the plaintiff herein (James v. Maddox, 153 Ga. 208 (3), 111 S. E. 731; Smith v. Scarborough, 182 Ga. 157, 185 S. E. 105); and the direction in the fi. fa., to make a certain sum of money out of the property described therein as the property of, the plaintiff, was properly corrected by inserting the name of the defendant in the place of the name of the plaintiff, so as to make the fi. fa. con
6. The foreclosure proceedings hot being void for any reason assigned, the petition failed to set forth a cause of action for trespass. See Hardy v. Luke, 18 Ga. App. 423 (89 S. E. 540); Gunn v. Pattishal, 48 Ga. 405; Hathaway v. Smith, 117 Ga. 946 (43 S. E. 984).
7. While under the preceding rulings the petition was subject to the attack made by the demurrer, in that it set out no cause of action for damages and made no valid attack on the validity of the foreclosure proceedings, it appears from the allegations that the plaintiff, by the acts of the defendants, was prevented from pursuing his remedy at law by affidavit of illegality. Ender these circumstances he was entitled to come into equity, enjoin the proceeding at law, and set up his defenses therein. Newton Mfg. Co. v. White, 47 Ga. 400; Clary v. Haines, 61 Ga. 520. Equity, h ving acquired jurisdiction, will retain it, and the acts of the defendants in removing the obstacle to the filing of an affidavit óf illegality after the institution of the present suit would not defeat the already acquired jurisdiction of the court of equity. It would be inequitable to do so, and thus throw the cost of the suit, which they compelled the plaintiff to file, upon the latter. Newton Mfg. Co., supra.
8. Ender the circumstances set out above, it was error to dissolve the temporary restraining order and to dismiss the petition on the ground that the plaintiff could then file his affidavit of illegality (Newton Mfg. Co. v. White, supra), inasmuch as the plaintiff, under the allegations of the petition, would be entitled to have determined in the court of equity the question whether or not he owed the mortgage debt.
Judgment reversed.