McElreath v. Gross

• Decision Date: 16 January 1919
• Docket Number: 9745.
• Parties: MCELREATH v. GROSS ET AL.
• Court: Georgia Court of Appeals

98 S.E. 190

23 Ga.App. 287

MCELREATH v. GROSS ET AL.

No. 9745.

Court of Appeals of Georgia, First Division

January 16, 1919

Syllabus by the Court.

"Malicious use of legal process" is where a plaintiff in a civil proceeding employs the court's process in order to execute the object which the law intends for such a process to subserve, but proceeds maliciously and without probable cause. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein.

"Malicious abuse of legal process" is where a plaintiff in a civil proceeding willfully misapplies the process of a court in order to obtain an object which such a process is not intended by law to effect. In a suit for damages growing out of such a perversion of the court's process, it is not necessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of the suit for damages.

The court below did not err in sustaining the demurrer as applied to each count of the petition.

Error from Superior Court, Camden County; J. P. Highsmith, Judge.

Action for damages by Emmett McElreath against J. H. Gross and others. General demurrer to petition sustained, suit dismissed, and plaintiff brings error. Affirmed.

It appears that an ordinance of the City of Kingsland imposed certain license taxes for doing business within that municipality; and provided for its enforcement by fine or labor on the streets, where persons liable to the tax transacted such business without first obtaining a license so to do; that Gross, Carleton, and others filed a petition for injunction against Emmett McElreath, the mayor, and W. H Jones, the marshal of the municipality, in which they alleged that the ordinance was void as not being authorized by the city's charter, that petitioners had been arrested and fined for doing business without a license, and that they had sued out writs of habeas corpus before the ordinary, but that the mayor had notified them that he would continue to have them arrested if they attempted to do business without a license, wherefore they prayed that the defendants be enjoined from further arresting or trying them under said ordinance. On the interlocutory hearing before the judge of the superior court, the defendants were enjoined as prayed. That judgment was reversed by the Supreme Court, it being held that the case fell within the general rule that a court having equitable jurisdiction will not restrain by injunction a prosecution for the violation of a penal ordinance, nor in such a proceeding inquire into the validity of the ordinance and that the case did not properly come within the exceptions to such general rule as had in some instances been recognized. See Jones v. Carlton, 146 Ga. 1, 90 S.E 278. This decision of the Supreme Court was made the judgment of the court below, and, after the final determination of the injunction proceeding, the said Emmett McElreath instituted the present action for damages against the petitioners in that proceeding, alleging in the first count that the former proceeding was without probable cause and was a malicious use of legal process, intended only to injure, harass, and humiliate the petitioner in his administration of the office of mayor, and that such was its effect. The second count was for a malicious abuse of legal process, the averments of fact setting up the right of action being substantially the same as in the first count, except that a lack of probable cause as to the former proceeding was not alleged. To this suit for damages all the pleadings and orders in the former case were attached as exhibits. The defendants entered a general demurrer to the petition, and the...