Wilcox v. Mckenzie

• Court: Georgia Supreme Court
• Writing for the Court: Hall, Justice
• Citation: Wilcox v. Mckenzie, 75 Ga. 73 (Ga. 1885)
• Decision Date: 31 October 1885
• Parties: Wilcox. vs. McKenzie.

75 Ga. 73

Wilcox. vs. McKenzie.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Actions. Damages. Torts. Malice. Before Judge Simmons. Richmond Superior Court. October Adjourned Term. 1884.

Sarah J. Wilcox brought an action for damages against Annie V. McKenzie, alleging, in brief, as follows: The defendant in this suit had filed a bill against, certain administrators and the sureties on their bond, the plaintiff being one of them, alleging fraud, negligence and failure to account for moneys received by said administrators, which constituted a breach of the bond. In aid of this bill, the complainant therein sued out process of garnishment, and certain persons indebted to the plaintiff were served. The complainant also sued out an attachment, which was levied. On demurrer, the bill was dismissed, and thereupon the complainant dismissed the garnishment and attachment. By reason of the service of the summonses of garnishment and the levy of the attachment, the plaintiff in this case lost certain rents, her credit was impaired, and she was embarrassed and mortified and incurred serious loss.

On the trial, at the close of the plaintiff's evidence in support of the allegations of her declaration, the defendant moved for a non-suit, which was granted, the court passing the following order:

" Upon the introduction of the evidence offered by plaintiff in the above case, defendant's counsel having moved for a non-suit, in said case, and it being admitted by plaintiff's counsel that the motion should be granted, if the court should hold that plaintiff was not entitled to recover without showing malice and want of probable cause, the court so holding, it is ordered that said motion be sustained and a non-suit granted."

The plaintiff excepted.

Twiggs & Verdery, for plaintiff in error.

Foster & Lamar; M. P. Foster, for defendant.

Hall, Justice.

The question is, whether an action to recover damages for suing out and levying an attachment, and for instituting proceedings to obtain, and serving summons of garnishment, can be maintained without proof of malice and want of probable cause? If it can, then there was error in the decision rendered in this case, but if not, it is conceded that the judgment of non suit was properly awarded. If the view insisted on by the plaintiff be correct, as was said by the Supreme Court of the United States in Stewart vs. Sonneborn, 98 U. S., 192, " then every man who brings a suit against another, with the most firm and reasonable belief that he has a just claim and a lawful right to resort to the courts, is responsible in damages for the consequences of his action, if he happens to fail in his suit. His intentions may have been most honest, his purpose only to secure his own, in the only way in which the law permits it to be secured; he may have had no ill-feeling against his supposed debtor, and may have done nothing which the law forbids. Such is not the law. It is abundantly settled that no suit can be maintained against an unsuccessful plaintiff or prosecutor, unless it be shown affirmatively that he was actuated in his conduct by malice or some improper or sinister motive. Malice is essential to the maintenance of every such action, and not merely (as the circuit court supposed) to the recovery of exemplary damages. Notwithstanding what has been said in some decisions of a distinction between actions for criminal prosecutions and civil suits, both classes at the present day require substantially the same essentials. Certainly an action for instituting a civil suit requires not less for its maintenance than an action for a malicious prosecution of a criminal proceeding. Nicholson vs. Coghill, 4 Barn & Cress, 21; Webb vs. Hill, 3 Carr. & P., 485; Burhans vs. Sanford & Brown, 19 Wend. (N. Y.), 417.

" In Farmer vs. Darling (4 Burr, 1971), one of the earliest reported cases, if not the earliest, Lord Mansfield instructedthe jury that "the foundation of the action was malice, " and all the...