Fryer v. Morrison, (No. 14791.)

• Court: Georgia Court of Appeals
• Writing for the Court: BLOODWORTH
• Citation: Fryer v. Morrison, 32 Ga.App. 312, 123 S.E. 40 (Ga. App. 1924)
• Decision Date: 13 May 1924
• Docket Number: (No. 14791.)
• Parties: FRYER et al. v. MORRISON.

32 Ga.App. 312

123 S.E. 40

FRYER et al.

v.MORRISON.

(No. 14791.)

Court of Appeals of Georgia, Division No. 1.

May 13, 1924.

(Syllabus by the Court.)

Error from City Court of Albany; Clayton Jones, Judge.

Action by W. F. Morrison against C. E. Fryer and others. Judgment for plaintiff on demurrer, and defendants bring error. Reversed.

Jas. Tift Mann and R. S. Roddenbery, Jr., both of Albany, for plaintiff in error.

Milner & Farkas, of Albany, for defendant in error.

BLOODWORTH, J. Morrison brought suit for damages against the defendants' in this case, who, with others, were plaintiffs in a previous proceeding in which it was sought to enjoin him from establishing and maintaining an undertaking establishment near their homes. The petition in this case, properly construed, is a suit for the malicious use of legal process. McElreath v. Gross, 23 Ga. App. 287 (1), 98 S. E. 190. In Marshall v. Armour Fertilizer Works, 24 Ga. App. 403, 100 S. E. 766, this court said:

"There are three essential elements, which must appear before one can recover for malicious use of legal process: (1) Malice; (2) want of probable cause; and 3) that the proceeding complained of had terminated in favor of the defendant therein before suit for damages based upon it was brought."

That each of the three elements mentioned in the foregoing quotation are essential in suits of this character, see, also, Fender v. Ramsey, 131 Ga. 440, 443, 62 S. E. 527; Clement; v. Orr, 4 Ga. App. 118, 60 S. E. 1017.

Granting that in the case we are now considering the petition can be construed as showing that the injunction suit against Morrison was malicious and was without probable cause, it is fatally defective for want of an averment that the suit upon which it was founded had terminated in his favor. The court therefore erred in not sustaining the general demurrer to the petition. Fulton Grocery Co. v. Maddox, 111 Ga. 260, 264, 36 S. E. 647; Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276 (1), 62 S. E. 222; Waters v. Winn, 142 Ga. 138, 139, 82 S. E. 537, L. R. A. 1915A, 601, Ann. Cas. 1915D, 1248, and cases cited; Stoufer v. Missenheimer, 29 Ga. App. 191 (2), 114 S. E. 587; Gibbs v. Bank of Tifton, 21 Ga. App. 653 (3), 94 S. E. 827; and citations; Clement v. Orr, 4 Ga. App. 117, 120, 60 S. E. 1017, and cases cited.

It is true that in this case there is an allegation in the petition that, when the injunction case against Morrison was called for trial, the plaintiffs therein "voluntarily requested the judge to pass an order dismissing the suit." However, the record shows the following order:

"Upon the call of the above-stated case, it being made to appear to the court by competent evidence that the defendant W. F. Morrison has sold and conveyed all of his right, title,...