Sparrow v. Weld

170 S.E. 301, 47 Ga. App. 254, 1927 Ga. App. LEXIS 94

Opinion

Stephens, J.

1. “Where after a levy of a distress 'warrant no counter-affidavit is filed and the property is not replevied but is sold to satisfy the alleged indebtedness for Tent, the prosecution of such proceeding is not at an end so as to give a right of action ’for a malicious use of legal process to the alleged tenant against the person suing out the distress warrant; but in such a case it is essential to the right of action referred to that an issue should have been formed by a counter-affidavit filed, and that this issue should have terminated favorably to the alleged tenant.” See Sparrow v. Weld, 177 Ga. 134 (169 S. E. 487), in which the Supreme Court answered a certified question in this case.

2. The court did not err in sustaining the demurrer to the petition.

Judgment affirmed.

Jenkms, P. J., and Sutton, J., conour.