Creswell v. Acme Lumber & Supply Co.

Court of Appeals of Georgia

Creswell v. Acme Lumber & Supply Co.

149 S.E. 296, 40 Ga. App. 268, 1929 Ga. App. LEXIS 123

CourtCourt of Appeals of Georgia

DecidedAugust 23, 1929

Docket19840

StatusPublished

This text of 149 S.E. 296 (Creswell v. Acme Lumber & Supply Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Creswell v. Acme Lumber & Supply Co., 149 S.E. 296, 40 Ga. App. 268, 1929 Ga. App. LEXIS 123 (Ga. Ct. App. 1929).

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Opinion

Broyles, C. J.

1. “The judgment of the trial court overruling the general demurrer to the petition, not having been excepted to, became a conclusive determination that a cause of action and right to sue existed in favor of the plaintiff.” Staten v. General Exchange Ins. Corp., 38 Ga. App. 415 (144 S. E. 53). This ruling, however, is not pertinent where, upon the trial of a case, some of the material allegations of the petition are not proved by the evidence introduced by the plaintiff, and a nonsuit is awarded.

2. To support a recovery of damages for malicious abuse of legal process, “the evidence must show the unlful misapplication or perversion of a lawful process in order to obtain an object which such a process is not intended by law to effect.” (Italics ours.) Johnson v. Gordon, 26 Ga. App. 526 (106 S. E. 615). The petition in the present case charged, in substance, such a wilful misapplication or perversion of a lawful process, but the evidence for the plaintiff failed to support the charge, and the court did not err in granting a nonsuit.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur. W. E. & L. T. Mann, for plaintiff. li. Carter Tillman, for defendant.

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Broyles, C. J.

1. “The judgment of the trial court overruling the general demurrer to the petition, not having been excepted to, became a conclusive determination that a cause of action and right to sue existed in favor of the plaintiff.” Staten v. General Exchange Ins. Corp., 38 Ga. App. 415 (144 S. E. 53). This ruling, however, is not pertinent where, upon the trial of a case, some of the material allegations of the petition are not proved by the evidence introduced by the plaintiff, and a nonsuit is awarded.

2. To support a recovery of damages for malicious abuse of legal process, “the evidence must show the unlful misapplication or perversion of a lawful process in order to obtain an object which such a process is not intended by law to effect.” (Italics ours.) Johnson v. Gordon, 26 Ga. App. 526 (106 S. E. 615). The petition in the present case charged, in substance, such a wilful misapplication or perversion of a lawful process, but the evidence for the plaintiff failed to support the charge, and the court did not err in granting a nonsuit.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur. W. E. & L. T. Mann, for plaintiff. li. Carter Tillman, for defendant.

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149 S.E. 296, 40 Ga. App. 268, 1929 Ga. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creswell-v-acme-lumber-supply-co-gactapp-1929.

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