Porter v. Johnson
| Decision Date | 29 April 1895 |
| Citation | 23 S.E. 123,96 Ga. 145 |
| Parties | PORTER et al. v. JOHNSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where one owning real estate sues out in due and legal form a dispossessory warrant against another who entered as the tenant of a prior owner, and the warrant, in the absence of a counter affidavit and bond, is, by a proper officer, duly executed, and the tenant evicted, the latter cannot, unless the warrant was sued out with malice and without probable cause, maintain against the plaintiff in the dispossessory warrant an action for damages to or destruction of his business thus occasioned, there being no direct contractual relation between himself and such plaintiff.
2. It is not essential to the validity of a plea of justification that it should admit the existence of a right in the plaintiff which he alleges was violated by certain acts of the defendant, when the plea admits that the defendant did all the acts complained of in the declaration as wrongful and justifies the same. Accordingly, where the declaration alleged possession by the plaintiff of certain premises under a contract of rent or lease for a given term, and that he was unlawfully and wrongfully expelled therefrom before the expiration of that term under a dispossessory warrant sued out by the defendant, a plea admitting the suing out of the warrant and the expulsion of the plaintiff under it at the time alleged, but averring that the proceeding was instituted without malice and upon probable cause, and setting out facts which, if established, would amount to probable cause, is although it does not admit the existence of any contract under which the plaintiff held the premises, nevertheless a good plea of justification.
3. Where a licensed retailer of spirituous liquors dies pending the term for which the license was granted, such license is not assets of the estate of the deceased in the hands of his administrator; nor can the latter legally continue the business under the license for the unexpired term covered by it.
4. Even in a case where damages to the business of a retailer of spirituous liquors, occasioned by his unlawful expulsion from his place of business, are allowable, the profits of the business for a period to elapse after the expiration of the retailer's license cannot be considered. Inasmuch as an existing license is limited to the time for which it was granted, and the obtaining of a new license depends upon the wills of other persons than the licensee, profits which might have been realized upon the business in case there had been no expulsion and the license had been renewed or continued are too remote and speculative.
5. Where J., who was in possession of certain premises, informed P., who claimed the right of possession to the same, that he (J.) held under a written lease from a former owner of the property, to which P. was not a party, and P., upon ascertaining that such lease was of no validity in J.'s hands, gave him notice as a tenant at will or by sufferance to quit, and thereafter sued out a dispossessory warrant to expel J. from the premises, although J., while the notice to quit was pending, in a written warning to P. not to have the warrant executed. referred to the written lease only as the source of his right to retain possession, without mentioning any other lease, yet where, before the actual suing out or execution of the dispossessory warrant, P. was otherwise informed of an oral lease made directly to J. by P.'s vendor, then, if this latter lease conferred upon J. the right to remain in possession of the premises, it was, under all the facts and circumstances, a question for the jury whether or not in suing out the dispossessory warrant, and having the same executed, P. acted without malice and upon probable cause.
Error from city court of Atlanta; Howard Van Epps, Judge.
Action by Annie Johnson, administratrix, against J. H. Porter and others, for wrongful eviction. There was a judgment for plaintiff, and defendants bring error. Reversed.
Brandon & Arkwright and L. E. Bleckley, for plaintiffs in error.
Arnold & Arnold and C. D. Hill, for defendant in error.
1. There are various forms of action to which resort may be had according to the nature of the facts, to recover for injury sustained by reason of the wrongful use of legal proceedings, or process. Ordinarily, the remedy is an action for malicious prosecution, or an action for the malicious use or abuse of legal process. Where an action has been instituted or prosecuted with malice and without probable cause, an action for malicious prosecution may lie. An action for malicious abuse of legal process will lie where legal process has been employed for some object other than that which it was intended by law to effect, for example, where a man has been arrested or his goods seized in order to extort money from him, even though it be to pay a just claim other than the one in suit, or in order to compel him to give up possession of a deed or other thing of value, not the legal object of the process. Mayer v. Walter, 64 Pa. St. 285; Grainger v. Hill, 4 Bing. N. C. 212, 33 E. C. L. 331; And. Law Dict. "Process." In such an action it is not necessary to allege want of probable cause. The malicious use of legal process may give rise to an action where no object is contemplated to be gained by it other than its proper effect and execution.
In such case it is necessary to show malice and want of probable cause. In some instances an action for trespass quare clausum fregit or trespass vi et armis will lie. In some cases the use of legal proceedings or process may amount to a breach of contract, and an action for breach of contract will lie. Of course, if the action is for trespass or for breach of contract, it is unnecessary to show malice or want of probable cause.
Keeping the differences in these various forms of action in view, and excluding some dicta and loose expressions of some of our predecessors, all the cases cited from our Reports by the learned counsel on both sides may be reconciled and harmonized, and applied with certainty to the allegations in the declaration now under consideration. The first count in the declaration alleges, in substance, that the plaintiff's intestate had rented a certain house for a year, and that, before the term expired, the defendants, knowing this, maliciously and without probable cause sued out a dispossessory warrant, seized his goods, put them into the street, and ejected him from the premises. According to all the decisions on the subject, both in England and in this country, if these allegations are sustained by proof, the plaintiff ought to recover. The only conflict in the decisions, so far as my reading extends, is that, while a number of the courts hold that malice and want of probable cause in the institution of the proceeding are sufficient to authorize a recovery, others hold that there can be no recovery unless there was a seizure of the person or property. All concur in holding that where there is both malice and want of probable cause, and seizure of the person or property, a recovery may be had. See, upon this subject, an able and interesting review of the cases, by Mr. Lawson, in 21 Am. Law Reg. (N. S.) 281, 353. So far as I know, no respectable court in this country has ever held that an action will lie against a person for having brought an action against another, unless he did so with malice and without probable cause. If the law were otherwise, the ending of an action would be merely the beginning of litigation. The defendant, immediately upon the failure of the action, would begin one against the plaintiff; and, if the latter action should fail, the defendant therein would in turn bring another action; and so on ad infinitum. This court is fully committed to the doctrine that such an action is not maintainable without proof of malice and want of probable cause. The doctrine was announced in the case of Sledge v. McLaren, 29 Ga. 64, and has been repeatedly recognized in other cases since. In that case the declaration alleged that McLaren, by reason of suing out an attachment against the plaintiffs, had their goods levied on and sold at a great loss and sacrifice, and that the business of the plaintiffs was broken up and destroyed; and it was held that the plaintiffs must show malice and want of probable cause. See, also, Willcox v. McKenzie, 75 Ga. 73; Marable v. Mayer, 78 Ga. 716, 3 S.E. 429; Hyfield v. Furnace Co., 89 Ga. 827, 15 S.E. 752. And see Cook v. Walker, 30 Ga. 519; Riley v. Johnston, 13 Ga. 260.
The plaintiff closes the first count in her declaration with the following allegation: Whether the pleader intended this to be a separate and independent count or whether it is alleged as an aggravating circumstance, to be taken in connection with the facts as set out in the first count, we are unable to say. If the latter was his intention, of course it must be taken in connection with the first count, and that count alleges that the act was done with malice and without probable couse. If intended as a separate and distinct count, as we have shown supra, the allegation of want of probable cause was not necessary; but, if our views upon the abuse of legal process are correct, the conclusions drawn by the pleader are not correct. The object attained by suing out the warrant was not a perversion of the process. The obtaining possession of the premises was the very object of suing out the warrant. This being true, it could not be an...
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