Gray v. Joiner

Cobb, P. J. (After stating the facts.) 1. There was in the petition language which was appropriate to an action for malicious use of civil process, and it may have been in the mind of the pleader to bring an action of this nature. It appears, from the allegations of the petition, that the process against the plaintiff, which is the foundation of this complaint against the defendant, was an execution issued by a justice of the peace upon the foreclosure of a landlord’s lien for an amount exceeding $100. The justice of the peace was without jurisdiction to entertain the application for foreclosure, or to issue execution thereon. Civil Code, §2816 (3). The process was therefore void, and could not be made the foundation, for a suit for the malicious use of process. Berger v. Saul, 113 Ca. 869, and cit. There are allegations in the petition, however, which (treating the process as void) would render the de [547] fendant'liable as k trespasser; and therefore the suit must be treated as a petition'in an action of trespass. Fulton Grocery Co. v. Maddox, 111 Ga. 260, and cit. The motion for "a new trial contains an assignment of. error upon an instruction of the judge in which the jury are, in .’effect, told that if there was probable cause for suing out.the execution, and the defendant acted in good faith in $o-doing, nnd.made no false representation to the officer, and the officer issued the papers for the defendant, and there was ho collusion between the" officer and the defendant to bring any illegal action, the defendant would not be- liable for vindictive damages; but if the defendant colluded with the officer, and there was no probable cause, and defendant’s purpose was to -take advantage of the plaintiff and deprive him of his property without due process of law, then it was for them to say how much he was damaged. The-judge, in effect, told the jury that if there was probable cause for' suing out the execution, and it was not done with a malicious intent, the plaintiff would not be entitled to recover. Our brother of the circuit bench seems to have misapprehended the true legal import of the petition. The averments 'of the petition' are so inapt to the real cause of action contained therein, it is a matter of no surprise that 'the judge in the hurry of a nisi prius trial, should have been misled thereby. The instructions of. the judge were upon the theory that the suit was for malicious use of proce'ss. Treating the petition as one in an action of trespass, the question of probable cause or malice-should not have been submitted to the jury. The only questions were, was the property seized by the defendant the property of the plaintiff, and was this seizure without authority, of law ? If so, the plaintiff was entitled to recover general damages and any special damages which flowed directly from the wrongful act. Neither malice nor probable ’cause was involved in the ease. The assignment of error upon the judge’s charge was that if the process was illegal and the plaintiff’s property was seized thereunder, he would have a right to recover, and the suing out would not have to be wanton and malicious; and also that when one does an illegal act he is chargeable, under the law, with the consequences •of his act. We think the assignment of error upon this point is well taken; and this requires a reversal of the judgment. 2. There was no error in allowing the amendment to the defendant’s original plea, or in refusing to strike the plea as amended. [548] It appeared, from the allegations of the plea, that the account attached to the plea had been submitted to the plaintiff and agreed to-by him as correct as to items and amount, and the fact that no day or month preceded each item would not, under such circumstances,, be a sufficient reason for striking the plea. Insolvency is a sufficient reason for allowing an equitable plea of set-off praying that damages arising ex contractu be set off against damages arising ex delicto. As the case is to be tried again, we will now refer to some matters, in the various assignments of error, which may arise on another trial. There was no error in admitting in evidence the book of accounts offered by the defendant, or in allowing his son to-testify as to the cfedits which he placed thereon at his father’s-direction, there being evidence that there was an agreement between the plaintiff and the defendant that the son should keep a memorandum of the transactions between them. The conversation between the witness and the justice, in reference to what the justice said as to the conduct of the defendant, was properly excluded, for the reason that the defendant was not present, and such, evidence was merely hearsay. The evidence offered to show that the plaintiff had always paid his debts, as well as that offered to show that in the winter following the wrongful conduct complained of on the part of the defendant, the plaintiff’s children had to go-through the winter without shoes and without clothing, was properly excluded as being irrelevant. No error was committed in refusing to allow the plaintiff to testify that the bond which he had offered at the time his property was seized was a valid bond. The validity of the bond was a question of law, and not of fact. The plaintiff should have been allowed to testify as to the property taken away by the defendant, but the court was right in refusing to allow him to testify as to the contents of the paper under which the property was seized. The fact that the defendant took away certain, property could-be proved by the testimony of the plaintiff, if he knew the fact that the defendant took it, and what was taken. As to what property was embraced in an entry which purported to be a levy, of course the entry itself "was the highest evidence. Judgment reversed. All the Justices concur, except Fish, O. J., absent.