Brown v. Smith

Supreme Court of Georgia

Brown v. Smith

165 S.E. 243, 175 Ga. 470, 1932 Ga. LEXIS 274

CourtSupreme Court of Georgia

DecidedAugust 16, 1932

DocketNo. 8643

StatusPublished

This text of 165 S.E. 243 (Brown v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Smith, 165 S.E. 243, 175 Ga. 470, 1932 Ga. LEXIS 274 (Ga. 1932).

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Opinion

Atkinson, J.

1. The petition, construed most strongly against the pleader, did not allege any valid ground of attack upon the judgment.

2. There was failure to allege a cause of action for damages or injunction based on trespass.

3. “If an action has been instituted and prosecuted with malice and without probable cause, a suit for malicious prosecution will lie. If a party knowingly employs process, legally and properly issued, wrongfully and unlawfully for a purpose which it is not intended by law to effect, there is a malicious abuse of process, and an action will lie therefor. In the former class of actions it is necessary to allege malice, want of probable cause, and that the action in which the process issued has been finally determined in favor of the defendant therein. In the latter class a suit may be maintained before the action in which such process was issued has terminated.” Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 281 (62 S. E. 222). In Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294 (71 S. E, 421, 36 L. R. A. (N. S.) 1112), it was held: “One is liable in an action for malicious abuse of civil process who fraudulently procures a judgment upon a spurious claim, causes a fi. fa. to issue thereon, and directs the seizure of the plaintiff’s property by a levying officer, which is averted only by the payment of the fraudulent judgment by the plaintiff’s wife during his absence.” See also King v. Yarbray, 136 Ga. 212 (71 S. E. 131). In the instant case the petition failed to allege a cause of action for damages, either as for malicious prosecution [471]*471or for abuse of civil process. The allegations of fact differ materially in essential parts from the facts involved in the eases just cited, where different results were reached.

No. 8643. August 16, 1932.

4. The judge did not err in dismissing the case on general demurrer to the petition. Judgment affirmed.

All the Justices concur. A. R. Dorsey, for plaintiff. D. F. Black and G. N. McLarty Jr., for defendant.

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Atkinson, J.

1. The petition, construed most strongly against the pleader, did not allege any valid ground of attack upon the judgment.

2. There was failure to allege a cause of action for damages or injunction based on trespass.

3. “If an action has been instituted and prosecuted with malice and without probable cause, a suit for malicious prosecution will lie. If a party knowingly employs process, legally and properly issued, wrongfully and unlawfully for a purpose which it is not intended by law to effect, there is a malicious abuse of process, and an action will lie therefor. In the former class of actions it is necessary to allege malice, want of probable cause, and that the action in which the process issued has been finally determined in favor of the defendant therein. In the latter class a suit may be maintained before the action in which such process was issued has terminated.” Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 281 (62 S. E. 222). In Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294 (71 S. E, 421, 36 L. R. A. (N. S.) 1112), it was held: “One is liable in an action for malicious abuse of civil process who fraudulently procures a judgment upon a spurious claim, causes a fi. fa. to issue thereon, and directs the seizure of the plaintiff’s property by a levying officer, which is averted only by the payment of the fraudulent judgment by the plaintiff’s wife during his absence.” See also King v. Yarbray, 136 Ga. 212 (71 S. E. 131). In the instant case the petition failed to allege a cause of action for damages, either as for malicious prosecution [471]*471or for abuse of civil process. The allegations of fact differ materially in essential parts from the facts involved in the eases just cited, where different results were reached.

No. 8643. August 16, 1932.

4. The judge did not err in dismissing the case on general demurrer to the petition. Judgment affirmed.

All the Justices concur. A. R. Dorsey, for plaintiff. D. F. Black and G. N. McLarty Jr., for defendant.

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Bluebook (online)

165 S.E. 243, 175 Ga. 470, 1932 Ga. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-smith-ga-1932.

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