Roberts v. Willys-Overland Inc.

108 S.E. 138, 27 Ga. App. 304, 1921 Ga. App. LEXIS 851

• Court: Court of Appeals of Georgia
• Decided: July 26, 1921
• Docket: 12524
• Status: Published

Opinion

Broyles, C. J.

(After stating the foregoing facts.) Although the plaintiff, by amendment, alleged that her cause of action was for the malicious abuse of legal process, it is very uncertain from the facts set forth in the petition whether she based her action upon the malicious use or the malicious abuse of legal process. However, in either event, the judge properly sustained the defendant’s general demurrer, since the facts alleged, when construed, as they must be, most strongly against the pleader, fail to show either a malicious use or a malicious abuse of legal process.

“Malicious use of legal process is where a plaintiff in a civil proceeding employs the court’s process in order to execute the object which the law intends for sneh a process to subserve, but proceeds maliciously and without probable cause. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein.” “ Malicious abuse of legal process is where a plaintiff in a civil proceeding wilfully misapplies the process of a court in order to obtain an object which such a process is not intended by law to effect. In a suit for damages growing out of such a perversion of the court’s process, it is not necessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of the suit for damages.” McElreath, v. Gross, 23 Ga. App. 287 (98 S. E. 190). See also Georgia Loan & Trust Co. v. Johnston, 116 Ga. 628 (43 S. E. 27), and Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 281 (62 S. E. 222), and eases cited. In the instant case the facts alleged were legally insufficient to constitute a cause of action for malicious use of process, since it was not alleged in the petition that the previous litigation had finally terminated against the plaintiff therein. Neither did the petition set out a cause of action for malicious abuse of process, since the facts alleged therein were legally insufficient to show that the bail-trover proceeding was wilfully misapplied or perverted to some use which the law did not intend that such a process should subserve. The petition admits that the title to the automobile was in the plaintiff in the trover proceeding, and that it had the right to sue petitioner in trover. The petition contains also an allegation that the plaintiff could have escaped arrest by either giving bond or surrendering the propertjq and the allegations as to why she did not take advantage of this right are wholly insufficient to constitute a legal excuse for her failure to do so. The purpose of a bail-trover proceeding is to require the defendant to give bond for the forthcoming of the property, and the facts alleged in the petition fail to show that the proceedings in the instant case were instituted for any other purpose.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.