Grant v. Moss

Supreme Court of Georgia

Grant v. Moss

90 S.E. 709, 146 Ga. 87, 1916 Ga. LEXIS 594

CourtSupreme Court of Georgia

DecidedNovember 15, 1916

StatusPublished

Cited by4 cases

This text of 90 S.E. 709 (Grant v. Moss) 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

Grant v. Moss, 90 S.E. 709, 146 Ga. 87, 1916 Ga. LEXIS 594 (Ga. 1916).

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Opinion

Gilbert, J.

(After stating the foregoing facts.) It will be ■observed that there was no allegation that the dispossessory warrant against the plaintiff in error was sued out with any ulterior motive, or that it was for a purpose which it is not intended by law to effect. It is true that the petition alleged that the suing out of the dispossessory warrant was wrongful and unlawful, wilful, wicked, and malicious. It is also alleged that H. C. Moss entered into a conspiracy with his wife, but the purpose of the conspiracy is alleged to have been to “dispossess your petitioner.” The petition, therefore, attempts to state an action for malicious use of legal process, and it does not appear from the petition that the object contemplated to be gained by such proceeding was any other than the proper effect and execution of the process. “In such case it is necessary to allege malice, want of probable cause, and that the action on which the process issued has been finally determined in favor of the defendant therein.” Mullins v. Matthews, 122 Ga. 286, 289 (50 S. E. 101), and authorities cited. The plaintiff made no defense to the dispossessory warrant. The petition failed to allege that the plaintiff had fulfilled his part of the rent contract. The petition also failed to allege want of probable cause, and that the action on which the process issued had been finally determined in favor of the defendant therein; and the demurrer was properly sustained.

Judgment affirmed.

All the Justices concur.

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Gilbert, J.

(After stating the foregoing facts.) It will be ■observed that there was no allegation that the dispossessory warrant against the plaintiff in error was sued out with any ulterior motive, or that it was for a purpose which it is not intended by law to effect. It is true that the petition alleged that the suing out of the dispossessory warrant was wrongful and unlawful, wilful, wicked, and malicious. It is also alleged that H. C. Moss entered into a conspiracy with his wife, but the purpose of the conspiracy is alleged to have been to “dispossess your petitioner.” The petition, therefore, attempts to state an action for malicious use of legal process, and it does not appear from the petition that the object contemplated to be gained by such proceeding was any other than the proper effect and execution of the process. “In such case it is necessary to allege malice, want of probable cause, and that the action on which the process issued has been finally determined in favor of the defendant therein.” Mullins v. Matthews, 122 Ga. 286, 289 (50 S. E. 101), and authorities cited. The plaintiff made no defense to the dispossessory warrant. The petition failed to allege that the plaintiff had fulfilled his part of the rent contract. The petition also failed to allege want of probable cause, and that the action on which the process issued had been finally determined in favor of the defendant therein; and the demurrer was properly sustained.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

90 S.E. 709, 146 Ga. 87, 1916 Ga. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-v-moss-ga-1916.

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