Andrews v. Mitchell

• Citation: 18 S.E. 1017,92 Ga. 629
• Parties: ANDREWS v. MITCHELL et al.
• Decision Date: 30 October 1893
• Court: Supreme Court of Georgia

18 S.E. 1017

92 Ga. 629

ANDREWS v. MITCHELL et al.

Supreme Court of Georgia

October 30, 1893

Syllabus by the Court.

1. The declaration, in an action to recover damages for the wrongful and malicious suing out and execution of a warrant to dispossess the plaintiff of certain premises, having attached thereto a copy of the affidavit and warrant, the latter sued out by Manley, as agent of Mitchell, dated February 8, 1892 with an entry by an officer on the same showing the fact of execution on the 2d day of March, 1892, a plea to this action by both defendants, alleging that "the premises were not rented to plaintiff longer than the 1st of December; that it was understood that plaintiff was to move out by that time as the premises had been rented prior to plaintiff's moving in; that plaintiff's plunder was in the depot, and he urged the defendant Manley to allow him to move it into said house with above understanding as to length of time he was to occupy same; said plaintiff refused to vacate said premises as he agreed, and defendants did what they could to get said plaintiff out without resorting to legal steps, but failing in this, said Manley swore out a dispossessory warrant, and still leniency was shown plaintiff several weeks thereafter before the same was executed; that no violence was used on the part of defendants or the officer executing said warrant; the swearing out of the warrant, and having the same executed, was done in the utmost good faith, and without malice and with probable cause,"--was, in substance, a plea of justification, and, in the absence of a special demurrer thereto for want of sufficient fullness and certainty, was rightly so held, and this holding was, therefore, no cause for granting a new trial.

2. The newly-discovered evidence discloses important and material admissions by the plaintiff, inconsistent with his right to recover; and, not being merely cumulative, or of an impeaching character, there was no abuse of discretion in granting a new trial on this ground.

Error from city court of Atlanta; T. P. Westmoreland, Judge.

Action by William A. Andrews against Mrs. E. J. Mitchell and others. There was a verdict for plaintiff, and from an order granting a new trial he brings error. Affirmed.

W. J. Albert, for plaintiff in error.

R. J. Jordan, for defendants in error.

SIMMONS J.

1. This was an action to recover damages for the wrongful and malicious suing out and execution of a warrant to dispossess the plaintiff of certain premises; and to the declaration filed in the case was attached a copy of the affidavit and warrant, the affidavit being sworn to by Manley as agent of Mrs. Mitchell. The defendants filed a special plea, which is set out in the first headnote. The question is whether this plea is a plea of justification, or a plea of the general issue, or not guilty. At the trial the court below held that it was a plea of...