Davison-Paxon Co. v. Walker

• Court: Georgia Supreme Court
• Writing for the Court: BECK, P.J.
• Citation: Davison-Paxon Co. v. Walker, 174 Ga. 532, 163 S.E. 212 (Ga. 1932)
• Decision Date: 27 February 1932
• Docket Number: 8314.
• Parties: DAVISON-PAXON CO. v. WALKER WALKER v. DAVISON-PAXON CO.

163 S.E. 212

174 Ga. 532

DAVISON-PAXON CO. v. WALKER

WALKER v. DAVISON-PAXON CO.

No. 8314.

Supreme Court of Georgia

February 27, 1932

Syllabus by the Court.

Plaintiff suing for malicious use of process must show suit was malicious and without probable cause and terminated in plaintiff's favor.

Petition for malicious use of process alleging plaintiff arrested in bail trover regained liberty by paying value of property sued for, and that thereupon suit was terminated, held insufficient to show favorable termination.

Issuance of bail process held not malicious abuse of process where settlement by defendant resulted in plaintiff's receiving value of property sued for.

Elements necessary to "malicious abuse of process" are ulterior motive and improper use of process.

On certification of questions, Supreme Court will not look into record to determine whether question is adjusted to pleadings.

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 settled and 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.

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.

RUSSELL C.J., dissenting.

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 suit 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 recovering 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, 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."' In McElreath v. Gross, 23 Ga.App. 287, 98 S.E. 190, 191, it was said: "No misapplication or perversion of the court's process is made to appear. The object attained in suing out the petition for injunction was not a perversion of that process. If the purpose and effect of suing out the process had been to maliciously injure, harass, and humiliate the plaintiff, and had it 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 malicious abuse of process, it must be willfully misapplied or perverted to some use which the law did not intend that such a process should subserve."

These rulings by the Court of Appeals of this state are supported by numerous authorities which are to be found both in text-books and in the decisions of courts of other states. In 1 R.C.L. 102, it is said: "The two kinds of actions really necessary to be distinguished are actions for abuse of process and...