American Wholesale Corp. v. Kahn

156 S.E. 324, 42 Ga. App. 411, 1930 Ga. App. LEXIS 429

• Court: Court of Appeals of Georgia
• Decided: December 19, 1930
• Docket: 20936; 20937
• Status: Published

Opinion

Broyles, C. J.

1. Since the passage of the statute of 52 Henry III., 1267, allowing costs to defendants in suits where the plaintiffs fail to recover, an action for maliciously bringing a suit can not be maintained unless .it be shown that the defendant had maliciously sued the plaintiff, either with the intent to imprison him, or to attach his property, or to do him some special damage; and this must be set out specially. Mitchell v. Southwestern Railroad, 75 Ga. 398 (3), 405. See McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190) ; Short v. Spragins, 104 Ga. 628 (30 S. E. 810) ; Ehrlich v. Exchange Bank, 35 Ga. App. 790 (134 S. E. 809) ; Williams v. Adelman, 41 Ga. App. 424 (153 S. E. 224).

2. The petitions in the instant cases, not containing any allegation of fact that the proceedings complained of were employed for any specified unlawful purpose, did not state a case for “malicious use of legal process” or for “malicious abuse of legal process,” and in each case the court erred in overruling the general demurrer to the petition. The allegations in each petition, that the defendant did wilfully, wantonly and maliciously bring the former suit with intent to specially damage the plaintiff, were not supported by the facts set forth.

Judgment reversed.

Luke and Bloodeoorth, JJ., concur.