Braswell v. Mason Kominers Tire Co., Inc.

• Decision Date: 28 October 1937
• Docket Number: 26217.
• Citation: 193 S.E. 357,56 Ga. App. 593
• Parties: BRASWELL v. MASON KOMINERS TIRE CO., Inc.
• Court: Georgia Court of Appeals

193 S.E. 357

56 Ga.App. 593

BRASWELL v. MASON KOMINERS TIRE CO., Inc.

No. 26217.

Court of Appeals of Georgia, First Division

October 28, 1937

Syllabus by Editorial Staff.

"Malicious abuse of process" exists where plaintiff in civil proceeding willfully misapplies process of court to obtain object which such process is not intended by law to effect as contradistinguished from "malicious use of process" where plaintiff employs court's process to execute object which law intends process to subserve, but proceeds maliciously and without probable cause.

A petition for malicious abuse of legal process not alleging that bail trover proceeding terminated in favor of defendant therein was insufficient to state cause of action.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by G. A. Braswell against Mason Kominers Tire Co., Inc. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Frank A. Bowers, of Atlanta, for plaintiff in error.

Tidwell & Brown, of Atlanta, for defendant in error.

Syllabus OPINION.

BROYLES Chief Judge.

1."Malicious abuse of legal process is where the plaintiff in a civil proceeding willfully 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 without probable cause.McElreath v. Gross,23 Ga.App. 287, 98 S.E 190;Roberts v. Willys-Overland, Inc.,27 Ga.App 304, 305, 108 S.E. 138.In the instant case it does not appear that in the trover proceeding the court's process was misapplied in order to obtain an object which such a process is not intended by law to effect, since-'the legitimate purpose of making an affidavit to require bail in an action to recover personal property is to require bond to be given for the forthcoming of the property to answer such judgment, execution, or decree as may be rendered or issued in the case, or, on failure thereof, to have the officer seize the property, or, if it is not to be found, to have the defendant committed to jail until the property shall be produced or bond be given, unless the defendant shall be released without security.'Brantley v Rhodes-Haverty Furniture Co.,131 Ga. 276, 281, 282, 62 S.E. 222....