Creswell v. Acme Lumber & Supply Co.

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

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.