Stembridge v. Milton

124 S.E. 540, 32 Ga. App. 735, 1924 Ga. App. LEXIS 616

• Court: Court of Appeals of Georgia
• Decided: October 2, 1924
• Docket: 15224
• Status: Published

Opinion

Stephens, J.

1. The acquisition of personal property from one having the •custody thereof but having no authority from the owner to surrender its possession to another affords probable cause for the issuance of a possessory warrant by the owner for its recovery.

2. In an action for malicious arrest and malicious use of legal process, predicated upon the arrest of the plaintiff under a' possessory warrant sued out by the defendant for the recovery of certain cross-ties which had come into the plaintiff’s possession, the petition fails to allege a want of probable cause where it alleges that the cross-ties, as the property of the defendant, had been acquired from the defendant’s wife at the defendant’s home, and where it does not appear that the wife in parting with the property, had authority from the owner to do so.

3. Construing the allegations of fact in the petition most strongly against the pleader, an allegation that when an intermediary, who was the person who had obtained the cross-ties from the defendant’s wife, delivered them- to the plaintiff, he informed the plaintiff of the facts of the transaction which the intermediary had had with the defendant’s wife, “who,” as the petition here alleges, “was the agent and representative of the” defendant, is no more than an allegation that the wife, at the time the intermediary made the communication to the plaintiff, was the agent and representative of the defendant; and such allegation will not be construed as alleging that the wife, at the time she surrendered the possession of the cross-ties to the intermediary, was the agent of the defendant, or that, as such agent and representative, she had authority to surrender the possession of the defendant’s property.

Decided October 2, 1924.

4. An allegation in tlie petition that the defendant had dismissed the possessory-warrant proceedings is an allegation that the proceedings upon the possessory warrant had terminated favorably to the defendant' therein.

5. The petition otherwise set out a cause of action; and direction is given that until the remittitur of this court is made the judgment of the trial court, the plaintiff be allowed to amend the petition to. meet the defect pointed out in paragraph 3 above.

Judgment affirmed, 'with direction.

Jenkins, P. J., and Bell, J., concur. Morris, Hawkins & Wallace, for plaintiff. Wood & Vandiviere, for defendant.