Sparrow v. Weld

• Decision Date: 19 May 1933
• Docket Number: 9296.
• Citation: 169 S.E. 487,177 Ga. 134
• Parties: SPARROW v. WELD.
• Court: Georgia Supreme Court

169 S.E. 487

177 Ga. 134

SPARROW v. WELD.

No. 9296.

Supreme Court of Georgia

May 19, 1933

Syllabus by the Court.

Where no counteraffidavit was filed after levy of distress warrant and distrained property was not replevied, but was sold to satisfy alleged indebtedness for rent, tenant could not maintain action for malicious use of legal process, since prosecution of proceeding was not at end (Civ. Code 1910,§ 5391).

Suit for malicious use of legal process, based on distress warrant proceeding, cannot be maintained unless issue has been formed by counteraffidavit and has terminated favorably to alleged tenant (Civ. Code 1910, § 5391).

Where after a levy of a distress warrant no counteraffidavit is filed and the property is not replevied but is sold to satisfy the alleged indebtedness for rent, the prosecution of such proceeding is not an end, so as to give a right of action for a malicious use of legal process to the alleged tenant against the person suing out the distress warrant; but in such a case it is essential to the right of action referred to that an issue should have been formed by a counteraffidavit filed, and that this issue should have terminated favorably to the alleged tenant.

Certified Question from Court of Appeals.

Proceeding between John Sparrow and Mrs. J. D. Weld. To review the judgment, the first named party brings error to the Court of Appeals, which certifies a question.

Question answered.

RUSSELL C.J., and HILL, J., dissenting.

Pottle Hardwick, Farkas & Cobb and Lamar Cox, all of Albany, for plaintiff in error.

Bennet & Peacock and Louis A. Peacock, all of Albany, for defendant in error.

PER CURIAM.

The Court of Appeals certified the following question: "Where after the levy of a distress warrant no counter-affidavit is filed, and the property is not replevied but is sold to satisfy the alleged indebtedness for rent, is the prosecution at an end, so as to give a right of action for a malicious use of legal process to the alleged tenant against the person suing out the distress warrant; or is it essential to such right of action that an issue should have been formed by a counter-affidavit filed and that this issue should have been determined favorably to the alleged tenant?"

That there is some confusion and lack of harmony in the cases dealing with this and similar questions must be admitted. The confusion has arisen by a failure to keep in mind the distinction between the different forms of action, including "malicious abuse" and "malicious use" of legal process. Porter v. Johnson, 96 Ga. 145, 23 S.E. 123. In that case it was not expressly ruled that a suit for the malicious use of legal process, in order to withstand a general demurrer, must allege that the suit has terminated favorably to the defendant therein, that is, the person bringing the suit for damages; but that question does not appear to have been involved in the Porter Case. The difference between the two forms of action has been so many times stated as not to require a repetition here.

It is a well-settled general rule that in an action for malicious use of legal process it is necessary to allege "that the action on which the process issued has been finally determined in favor of the defendant therein." Mullins v. Matthews, 122 Ga. 286, 289, 50 S.E. 101, 102, and cit. See, also, Waters v. Winn, 142 Ga. 138, 82 S.E. 537, L.R.A. 1915A, 601, Ann.Cas. 1915D, 1248; Grant v. Moss, 146 Ga. 87, 90 S.E. 709; King v. Yarbray, 136 Ga. 212, 71 S.E. 131; Clement v. Orr, 4 Ga.App. 117, 60 S.E. 1017; Davis v. Hall, 20 Ga.App. 398, 93 S.E. 25; Dyer v. Fromshon, 42 Ga.App. 174, 155 S. E, 380. Perhaps there may be exceptions to the general rule to which we have just adverted, and at one time the wrongful suing out and levy of a distress warrant might have constituted such an exception. We refer to the case of Sturgis v. Frost, 56 Ga. 188. Even if the decision in that case should be construed as treating the action as a suit for malicious use of process, as distinguished from some other form of action, it is apparent that the decision was based largely upon the legal impossibility of defending the distress warrant without making bond for the eventual condemnation money, under the law as it then existed. The law was thereafter so amended by the Legislature as to provide "that when the levying officer retains possession of the property of the tenant levied on, it shall not be necessary to give the bond for the eventual condemnation." Ga. Laws 1894, p. 52; Civil Code 1910, § 5391. The enactment of this statute appears to have removed the chief basis of the reasoning in the Sturgis Case. It is now possible for the tenant to contest the liability even though he is unable to give the bond. Under the present law, he is not remediless and "at the mercy of the landlord" because of his inability to give the bond, as he might have been under the prior law. A distress warrant is final process until arrested by a counteraffidavit, but it may be converted into mesne process by the interposition of such a defense according to statute. This, we think, is a proper explanation of the case of Sturgis v. Frost, supra; and in this view it is harmonized with the decision in the later case of Marable v. Mayer, 78 Ga. 710, 3 S.E. 429, to the effect that in a suit for malicious use of process in suing out and levying a mortgage fi. fa. on personalty, it is necessary to allege that the foreclosure proceeding has terminated in favor of the defendant therein. Such an execution is also regarded as final process until it is arrested by counteraffidavit. Ford v. Fargason, 120 Ga. 606 (2), 48 S.E. 180. The same renowned jurist who delivered the opinion in Sturgis v. Frost was a member of this court at the time of the decision in Marable v. Mayer, supra, and concurred therein. Under the present law, a distress warrant is easy to be defended, and it does not possess the peculiar status which it occupied at common law. See McElroy v. Dice, 17 Pa. 163, 168; 1 Law Library (Bradby), 163, 168; 2 Cooley's Blackstone, 962-966.

The decision in McSwain v. Edge, 6 Ga.App. 9, 64 S.E. 116, was criticized in Davis v. Hall, 20 Ga.App. 398 (3), 93 S.E. 25, 26, by the statement that the "decision seems to overlook the necessary condition that the proceeding must not only have terminated, but terminated favorably to the defendant, before the action for the malicious use of civil process can be maintained."

Under the facts stated in the question certified by the Court of Appeals, the prosecution of the distress warrant proceeding was not at an end, so as to give a right of action for the malicious use of legal process. It was essential to a right of action for a malicious use of such process that an issue should have been formed by a counteraffidavit, and that this issue should have terminated favorably to the alleged tenant.

All the Justices concur, except RUSSELL, C.J., and HILL, J., who dissent.

HILL Justice.

The confusion or lack of harmony in cases dealing with the question under consideration was noted by Chief Justice Simmons in Porter v. Johnson, 96 Ga. 145, 147, 23 S.E. 123, 124: "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 a 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...