Marable v. Mayer

• Court: Georgia Supreme Court
• Writing for the Court: HALL, J.
• Citation: Marable v. Mayer, 78 Ga. 710, 3 S. E. 429 (Ga. 1887)
• Decision Date: 12 April 1887
• Parties: MARABLE v. MAYER and others.

3 S.E. 429

78 Ga. 710

MARABLE v. MAYER and others.

Supreme Court of Georgia

April 12, 1887

Error from superior court, Floyd county; BRANHAM, Judge.

This appeal is from a judgment sustaining a demurrer to the declaration in an action to recover damages for the malicious foreclosure of certain mortgages. The material allegations of the declaration are stated in the opinion.

Henry Walker, (by brief,) for plaintiff in error.

Wright Meyerhardt & Wright, for defendants.

HALL J.

In Wilcox v. McKenzie, 75 Ga. 73, we held that an action to recover damages for suing out and levying an attachment, and for instituting proceedings to obtain, and serving, summons of garnishment, could not be maintained without alleging and proving malice and want of probable cause; and that in the absence of such proof a nonsuit was properly awarded; that actions for criminal prosecution and civil suits require substantially the same allegations and proof. The declaration in this case failed to allege either a want of probable cause or that the suit on which the action was founded had terminated in favor of the plaintiff. For the want of such allegation it was demurrable because it set out no cause of action; and the court committed no error in sustaining the defendant's demurrer thereto, and dismissing the suit. Code, § 2982. It is essential to allege circumstances sufficient to satisfy a reasonable man that the plaintiff in the original suit had no ground for proceeding but his desire to injure the plaintiff in this action. The declaration shows that the defendants who were plaintiffs in the original suit, held an unsatisfied claim against the plaintiff in this suit which he had given them mortgages to secure; that they had foreclosed their mortgages, and caused the property so mortgaged to be levied on; that they refused to grant further indulgence, and thereby injured his business. There is no allegation that that suit was at an end, otherwise than such as may be inferred from the statement that the property had been sold, and, if that is to be deemed a termination of the suit, then it ended unfavorably to the plaintiff; nor is there any averment that the plaintiff had suffered other damage than was likely to ensue from the execution of the process against his property, and the sale of the same under the levy at the time such sale was made. That these allegations as made are, without more, insufficient to maintain...