Duckworth v. Boykin

Fish, J. 1. A petition in an action for the malicious institution or prosecution of a civil proceeding is. demurrable when it shows on its face that this proceeding terminated disadvantageous^ to the plaintiff in such action. Thus, where the petition in such an action alleges the wrongful suing out of a garnishment purporting to have been based upon a pending suit, and it appears from the petition itself, not only that the plaintiff therein was cast in that suit, [970] but al^o that the garnishment was productive, it is not erroneous to dismiss the petition upon a proper demurrer. Submitted February 19, Decided March 12, 1902. Action for damages. Before Judge Reid. City court of Atlanta.. June 22, 1901. J. II. Smith, for plaintiff. J. A. Boykin, for defendant. 2. Such a demurrer is good in such a case, notwithstanding the allegation in the petition that the plaintiff had. never been served in the original suit on which the garnishment was founded, and in which judgment was rendered against him, the allegations of the petition further showing that there was a regular return of service in the original suit, and there being no averment that the same had ever been traversed; for it is incumbent on the defendant in such a suit to traverse the return of service, and by establishing the truth of his. traverse have the original judgment against him set aside, before he will be in a position to bring his action for the alleged malicious prosecution. And the more especially is this so when it further appears from the petition that the plaintiff appeared in the court wherein the original suit against him and the garnishment were pending, and made an unsuccessful attempt to obtain a. judgment that the money raised by the garnishment was exempt therefrom. Judgment affirmed. AU the Justices concurring, except Little, J., absent.