Beall v. King

170 S.E. 896, 47 Ga. App. 502, 1933 Ga. App. LEXIS 533

Opinion

Stephens, J.

1. The mere entering or breaking into a house occupied by another and taking possession of personalty therein belonging to the occupant, and exercising dominion over it, either by destroying it or by giving it away, is not necessarily a trespass or a violation of the rights of the owner. Such acts, unless done without authority of law or contrary to some right of the owner, or without the owner’s consent, constitute no tortious or actionable wrong. It follows, therefore, that where in a petition it is alleged that the defendants, after having broken into and entered a house of the plaintiff, removed her personal effects therefrom, gave some of them away, and destroyed the rest, but it is not alleged wherein these acts of the defendants were illegal or contrary to some right of the plaintiff, or without the plaintiff’s consent, the petition fails to set out any actionable wrong arising out of the acts complained of. An allegation in the petition that a person at the defendants’ direction committed the acts complained of “without showing any legal authority for so doing, and without ever having shown the petitioner any authority for such action,” is not an allegation that the acts complained of were committed without authority of law or contrary to some right of the petitioner. The court therefore properly sustained the general demurrer.

2. Under the peculiar circumstances of this case the plaintiff is hereby given the right, when or before the judgment of this court is made the judgment of the trial court, to amend the petition by proper amendments removing the defects herein pointed out. Civil Code (1910), § 6103.

Judgment affirmed, with direction.

Sutton, J., concurs. Jenkins, P. J., absent on account of illness.