Davison-paxon Co v. Walker, 8314.

• Decision Date: 27 February 1932
• Docket Number: No. 8314.,8314.
• Citation: 174 Ga. 532,163 S.E. 212
• Parties: DAVISON-PAXON CO. v. WALKER WALKER v. DAVISON-PAXON CO.
• Court: Georgia Supreme Court

174 Ga. 532

163 S.E. 212

DAVISON-PAXON CO.

v.WALKER

WALKER

v.DAVISON-PAXON CO.

No. 8314.

Supreme Court of Georgia.

Feb. 27, 1932.

Syllabus by the Court.

1. In an action for damages for malicious use of process, where a cause of action is otherwise set out, but where the petition alleges that the former suit was an action of bail trover, and that after the plaintiff had been arrested by an officer who was required by law to execute the process she regained her liberty by paying an amount equal to the value of the property sued for and the costs of suit, "being without means at the time to give the bond required by law in such cases, " and thereupon "the said suit was marked settledand satisfied and was terminated, " the petition does not sufficiently show, as against a general demurrer, that such former action terminated in favor of the defendant therein.

2. The second question of the Court of Appeals is answered in the negative. This court will not look into the record to determine whether this question is adjusted to the case actually made by the pleadings in the cause pending.

RUSSELL, C. J., dissenting.

Questions Certified by Court of Appeals.

Suit by Mrs. J. C. Walker against the Davison-Paxon Company in which defendant brings writ of error to the Court of Appeals, and plaintiff files cross-bill of exceptions, and the Court of Appeals certifies questions.

Questions answered.

The Court of Appeals certified the following questions:

"1. In an action for damages for malicious use of process, where a cause of action is otherwise set out, but where the petition alleges that the former suit was an action of bail-trover, and that after the plaintiff had been arrested by an officer who was required by law to execute the process she regained her liberty by paying an amount equal to the value of the property sued for and the costs of suit, 'being without means at the time of giving the bond required by law in such cases, ' and thereupon 'the said suit was marked settled and satisfied and was terminated, ' does the petition sufficiently show, as against general demurrer, that such former action terminated in favor of the defendant therein? See, in this connection, Waters v. Winn, 142 Ga. 138(2), 82 S. E. 537, L. R. A. 1915A, 601, Ann. Cas. 1915D, 1248; Slater v. Kimbro, 91 Ga. 217, 18 S. E. 296, 44 Am. St. Rep. 19; Civil Code (1910), §§ 4317, 4255, 4116; White v. International Text Book Co., 156 Iowa, 210, 136 N. W. 121, 42 L. R. A. (N. S.) 346; 38 C. J. 444.

"2. Can it be said that the issuance of bail process in a trover case, valid on its face, was a malicious abuse of legal process, where upon the arrest of the defendant and upon her failure to give the bond or produce the particular property sued for the defendant paid and the plaintiff received the alleged value of the property sued for in settlement of the suit, where it is also alleged that the real purpose of the process was not to recover the property sued for but to collect the value thereof, and where it is alleged that the defendant, being unable to give the bond, paid the value of the property and costs of suit while in legal custody rather than go to jail, although she had never possessed the property sued for and had never owed the plaintiff in the trover suit anything; but where it is not alleged, as in Brantley v. Rhodes-Haverty Co., 131 Ga. 276, 62 S. E. 222, that the defendant had been thus coerced into surrendering other property than that specifically sued for, or that the process had been employed to force the defendant in the trover suit to enter into a new and different contract in regard to the alleged debt involved; and where it is not alleged, as in King v. Yarbray, 136 Ga. 212, 71 S. E. 131, that the process was employed for a purpose not legally permissible? In other words, can there be said to be perversion of a legal process regularly sued out and valid on its face, where the settlement of the suit results in the plaintiff receiving the particular property sued for or its equivalent in money? See Robinson v. Commercial Credit Co., 37 Ga. App. 291, 139 S. E. 915."

Alston, Alston, Foster & Moise and W. H. Sibley, all of Atlanta, for plaintiff in error.

Branch & Howard, W. H. Vermilya, and G. D. McKay, all of Atlanta, for defendant in error.

BECK, P. J.

1. We are of the opinion that the first question should be answered in the negative. In a suit for malicious use of process "it is well settled that the plaintiff must allege three things: First, that the suit against him was malicious; second, that it was without probable cause; and, third, that it had terminated in his [plaintiff's] favor before the s.uit for damages was filed." Clement v. Orr, 4 Ga. App. 117, 118, 60 S. E. 1017; Marable v. Mayer, 78 Ga. 710, 3 S. E. 429. Allegations of a petition in a suit for malicious use of process, that the former suit was an action of bail trover, and that after the plaintiff had been arrested by an officer who was required by law to execute the process she regained her liberty by paying an amount equal to the value of the property sued for and the costs of the suit, "being without means at the time to give the bond required by law in such cases, " and thereupon the suit against plaintiff was marked "settled and satisfied and terminated, " do not sufficiently show, as against a general demurrer, that such former action terminated in favor of the defendant therein. The suit being marked "settled and satisfied and terminated" indicates rather the contrary result, that is, that the former action terminated in favor of the plaintiff.

2. We are of the opinion that a negative answer should also be given to the second question. In Robinson v. Commercial Credit Co., 37 Ga. App. 291, 139 S. E. 915, 916, which was a suit for malicious abuse of process, it was said: "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 re-covering 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 bail trover 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 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, 9S 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,...