King v. Yarbray

• Decision Date: 14 April 1911
• Citation: 71 S.E. 131,136 Ga. 212
• Parties: KING v. YARBRAY.
• Court: Georgia Supreme Court

71 S.E. 131

136 Ga. 212

KING v. YARBRAY.

Supreme Court of Georgia

April 14, 1911

Syllabus by the Court.

There is a malicious abuse of legal process, where a party employs civil process wrongfully and unlawfully, and for a purpose not intended by law, and for such abuse of civil process an action will lie. Such a case is made by the petition.

In an action for abuse of civil process, where all the facts upon which the action is based are fully pleaded, it is proper to allow an amendment declaring that the act of the defendant in the wrongful institution and prosecution of the civil process as therein alleged was malicious and without probable cause.

(Additional Syllabus by Editorial Staff.)

An action for malicious abuse of legal process may be maintained before the action in which such process was issued has terminated; but an action for the malicious use of legal process, where no object is contemplated to be gained by such use, other than the proper execution of the process, cannot be commenced until the action on which the process issued is finally determined in favor of defendant therein.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by T. T. Yarbray against A. R. King. Judgment for plaintiff and defendant brings error. Affirmed.

Walter A. Sims, for plaintiff in error.

Heyward & Garrett and T. C. Battle, for defendant in error.

EVANS P.J.

Yarbray sued King to recover damages, alleging that King sued him in a justice court, and caused a summons of garnishment to be served on his employer; that, before the suit was brought plaintiff informed King, who was threatening to sue him and garnish his wages, that his wages as a locomotive engineer were not subject to process of garnishment, but that his employer (a railroad company) would suspend him until the debt upon which the garnishment issued was paid, if he was garnished, whereupon King replied that he was well aware of the rule of his employer that an employé would be suspended in case his wages were garnished until he paid the debt, but that he wanted his money, and, unless the debt was paid by a stated time, he would bring suit and garnish the plaintiff's employer. The plaintiff alleged that he could not pay the debt by the stipulated time, and that the defendant sued him, and garnished his employer, who suspended plaintiff from work and, as he was unable to pay the debt, he lost his job and was compelled to go through bankruptcy. At the time of his suspension the plaintiff was earning $105 per month, and was discharged from his employment because of the legal proceedings of the defendant. The institution of the garnishment proceeding was alleged to be an abuse of legal process. The plaintiff was allowed to amend his petition, over the objection of the defendant, by alleging that the institution of the garnishment proceedings was done maliciously and without probable cause. The...