Cooper v. Public Finance Corp.

• Decision Date: 16 June 1978
• Docket Number: No. 55311,55311
• Citation: 246 S.E.2d 684,146 Ga.App. 250
• Court: Georgia Court of Appeals
• Parties: COOPER et al. v. PUBLIC FINANCE CORPORATION et al.

Page 684

246 S.E.2d 684

146 Ga.App. 250

COOPER et al. v. PUBLIC FINANCE CORPORATION et al.

No. 55311.

Court of Appeals of Georgia.

Argued Feb. 7, 1978.

Decided April 5, 1978.

Rehearing Denied May 22, and June 16, 1978.

Neil L. Heimanson, Atlanta, for appellants.

Arnall, Golden & Gregory, Charles L. Gregory, Allen I. Hirsch, Atlanta, for appellees.

QUILLIAN, Presiding Judge.

This is an appeal from the dismissal of plaintiff's complaint in the trial court. Plaintiffs, William and Ann Cooper, executed a security agreement and note with Public Finance Corporation. They failed to make the necessary payments. Public Finance forwarded the matter to its attorney, Robert A. Sneed. On March 19, 1975, after receiving no response to his request for payment letter, Mr. Sneed filed a complaint on behalf of Public Finance against the Coopers in the State Court of DeKalb County and took a default judgment on June 18, 1975, when the Coopers failed to answer. Thereafter the Coopers paid the amount of the judgment to Mr. Sneed, except for a few dollars.

On December 21, 1976, the Coopers filed an action against Public Finance, Mr. Sneed, and his firm, in the Superior Court of DeKalb County in which they sought "judgments against the defendants . . . for all sums collected by the defendants from the plaintiffs pursuant to the void and illegal loan transactions . . . (That every customer of Public Finance) be notified of this action . . . (and) the plaintiffs receive for the use of and benefit of each and every member of the class . . . the sum of $25,000 for each such member as punitive damages . . ." This was Civil Action 97243 in DeKalb Superior Court.

On December 29, 1976, the Coopers filed this action, Civil Action 97347, in DeKalb Superior Court, seeking judgment against Public Finance Corporation, Mr. Sneed, and his firm, to "set aside and declare null and void the judgment of the State Court of DeKalb County . . . (and) That they have and recover against the defendants jointly and severally judgment for (the amount they had paid Mr. Sneed) plus all court costs . . . plus punitive damages against the defendants in the sum of $750,000.00 . . ."

On the same date that plaintiffs filed the second action they filed an amendment in the first suit striking Mr. Sneed and his firm as defendants, leaving only Public Finance Corporation as a common defendant in both actions. In the first action plaintiffs appealed from a dismissal of their complaint. This court reversed and remanded. See Cooper v. Public Fin. Corp., 144 Ga.App. 572, 241 S.E.2d 839.

In this action defendants' answers contained numerous defenses, including prior pending action, failure to state a claim and voluntary payment. Defendants' motions to "dismiss and/or strike" were granted. Plaintiffs bring this appeal. Held

1. We shall address the issues involving Public Finance first. Plaintiffs contend that under Code § 3-114 (as amended Ga.L.1967, pp. 226, 247) they have a right to "pursue any number of consistent or inconsistent remedies until (they) shall obtain a satisfaction from some of them." Thus, they argue that it is permissible to bring separate actions against the same defendant until they "obtain a satisfaction . . ." Public Finance contends that under Code § 3-601 "(n)o suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party . . . and the pendency of the former shall be a good defense to the latter, if commenced at different times."

Code § 3-114 provides a general remedy for a plaintiff to obtain satisfaction by using consistent or inconsistent remedies against one or more defendants until a judgment is satisfied. See Cox v. Travelers Ins. Co., 228 Ga. 498, 186 S.E.2d 748. However, Code § 3-601 provides a defendant with a specific defense against a plaintiff who comes within its parameters and will prevail over the general terms of Code § 3-114 if all of the conditions of Code § 3-601 are satisfied.

The same suitor here, the Coopers, did initiate two actions against the same party, Public Finance, in the same court at different times. The only remaining issue is whether these two actions involved the "same cause."

A "cause of action" is "the right to bring a suit." Atlantic C. L. R. Co. v. Tifton Produce Co., 56 Ga.App. 776, 779, 194 S.E. 72, 74; Davis & Shulman, Ga.Practice & Procedure § 1-2; Code § 3-101. "Generally, a single cause of action (with) several elements of damage admits of (but) one action or suit, (where) there is an identity of subject-matter and of persons and parties." Seaboard A. L. R. v. Insurance Co. of N. A., 18 Ga.App. 341(2), 89 S.E. 438. In the instant case there is identity of subject matter and of parties. A plaintiff "is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail." Crawford v. Baker, 86 Ga.App. 855, 859, 72 S.E.2d 790, 793; Rivers v. Wright & Co., 117 Ga. 81(3), 43 S.E. 499; Davis & Shulman, Ga.Practice & Procedure § 1-9.

Other states have adopted a rule that separate actions involve the "same cause" within a dismissal statute where the relief requested relates to substantially the same set of facts. Sidwell v. Sidwell, 75 Ill.App.2d 133, 220 N.E.2d 479; Leven v. Birrell, Sup., 91 N.Y.S.2d 729, 731; Jackson v. Thomson, 215 Pa. 209, 64 A. 421, 424; First Nat. Bank v. Lewinson, 12 N.M. 147, 76 P. 288; Hogle v. Reliance Mfg. Co., 113 Ind.App. 488, 48 N.E.2d 75, 80. This suit demanded "(t)hat the Court set aside and declare null and void the judgment of the State Court" in the action brought by Public Finance against the Coopers. When the Supreme Court forwarded plaintiffs' first appeal to this court, they labeled it as a "suit to set aside the judgment for a non-amendable defect appearing on the face of the record or pleadings . . ." Cooper v. Public Fin. Corp., 144 Ga.App. 572, 241 S.E.2d 839, supra. Both actions sought recovery of the money paid by plaintiffs to defendants in satisfaction of the judgment by Public Finance against them and both suits sought additional punitive damages. The relief requested in both suits was substantially the same. Both actions involved a cause arising from the same note and security agreement and both suits were grounded in the same theory that the note and the judgment were void.

Other states apply a rule that the cause of action is the same when the same evidence will support both actions, or rather the judgment in the former action will be a bar, provided the evidence necessary to sustain a judgment for plaintiff in the present action would have authorized a judgment for him in the former action. Rhodabarger v. Childs, 120 Okl. 88, 250 P. 489, 490; Vasu v. Kohlers, Inc., 145 Ohio St. 321(2), 61 N.E.2d 707. See generally, 1 Am.Jur.2d 648, Actions, § 128; 1 C.J.S. Actions § 64, p. 1184. The evidence presented at the former trial would have supported the principal part of the plaintiffs' second action. Most certainly, if plaintiffs had secured judgment in the former suit, that judgment could have been pled in bar of the second action for the same money paid by the plaintiffs to the defendants and they could not recover punitive damages in addition to that recovered in the first suit. See Stevens v. Board of Regents, 129 Ga.App. 347, 199 S.E.2d 620; Rothstein v. First Nat. Bank of Atlanta, 141 Ga.App. 526, 233 S.E.2d 802; Henderson v. Fulton County Bd. of Registration, etc., 231 Ga. 173(2), 200 S.E.2d 739; Henderson v. MARTA, 236 Ga. 849, 851, 225 S.E.2d 424; Code § 110-501.

We conclude, as to defendant Public Finance Corporation, both suits were based on the same cause of action and the pendency of the former action at that time was a bar to prosecution of this action. The trial court did not err in dismissing the complaint.

2. Plaintiffs' complaint alleged that Mr. Sneed caused a fi.fa. to be issued and recorded on the general execution docket and also caused to be issued "a garnishment upon the wages" of Mr. Cooper one of the plaintiffs. Further, that "through garnishment process, the defendants collected the amount of said judgment" and "by causing execution to issue . . . and causing garnishment to issue" the defendants had "maliciously and wilfully abused the process of the law."

In later paragraphs of the complaint, plaintiffs charged defendants "intentionally and deceitfully" caused a fi.fa. to issue, "knowing . . . there existed no probable cause, right or justification to cause said property to be levied upon or garnished." These terms are characteristics of actions based on malicious use and malicious abuse of process.

The terms "malicious prosecution," "malicious use of process," and "malicious abuse of process" are frequently confused and commingled. Each is separate and distinct and possesses elements not found in the other. Rivers v. Dixie Broadcasting Corp., 88 Ga.App. 131, 136, 76 S.E.2d 229. Malicious prosecution relates only to criminal prosecutions. Code § 105-801. Malicious use and abuse of process apply only to civil actions. See Metro Chrysler-Plymouth v. Pearce, 121 Ga.App. 835, 837, fn. 2, 175 S.E.2d 910. In suits for malicious prosecution of a criminal case, and malicious Use of civil process, three essential elements must appear: (1) malice, (2) want of probable cause to bring the first action, and (3) that the proceeding complained of had terminated in favor of the defendant in that suit the present plaintiff. Williams v. Adelman, 41 Ga.App. 424, 427, 153 S.E. 224; Davison-Paxon Co. v. Walker, 174 Ga. 532, 534, 163 S.E. 212.

Malicious Abuse of civil process, as contradistinguished from malicious Use of civil process, lies when the plaintiff in a civil proceeding wilfully misapplies process of the court in order to obtain an objective such process was not intended by law to achieve. Braswell v. Mason Kominers Tire...