Trustees Loan & Savings Co. v. Marinos

176 S.E. 651, 49 Ga. App. 547, 1934 Ga. App. LEXIS 478

• Court: Court of Appeals of Georgia
• Decided: September 20, 1934
• Docket: 23460
• Status: Published

Opinion

Stephens, J.

1. Where a petition contains allegations which show all the elements constituting a cause of action for a malicious use of legal process, except that it contains no allegation that the acts complained of were done maliciously, although there may be set out in the petition a cause of action for the abuse of legal process, an allegation in an amendment to the petition, that the, acts complained of were malicious, is merely a characterization of the acts alleged in the petition and an ' amplification of the allegations as to acts which constitute the elements of a cause of action for a malicious use of civil process. The petition as thus amended was not subject to the objection that by the amendment a new and distinct cause of action was added. King v. Yarbray, 136 Ga. 212 (2) (71 S. E. 131); Atkinson v. Brantley, 15 Ga. App. 129 (82 S. E. 773); Ivins v. L. & N. Railroad Co., 37 Ga. App. 684 (141 S. E. 423).

Decided September 20, 1934. Robert T. Efurd, Mose 8. Hayes, for plaintiff in error. L. 8. Pennisi, H. W. McLarty, contra.

2. The petition as amended set out a cause of action for a malicious use of legal process, and was not subject to the objection on demurrer that tlie petition as amended set out a new cause of action. The court properly overruled the demurrer.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.