Grant v. Moss

Gilbert, J. (After stating the foregoing facts.) It will be ■observed that there was no allegation that the dispossessory warrant against the plaintiff in error was sued out with any ulterior motive, or that it was for a purpose which it is not intended by law to effect. It is true that the petition alleged that the suing out of the dispossessory warrant was wrongful and unlawful, wilful, wicked, and malicious. It is also alleged that H. C. Moss entered into a conspiracy with his wife, but the purpose of the conspiracy is alleged to have been to “dispossess your petitioner.” The petition, therefore, attempts to state an action for malicious use of legal process, and it does not appear from the petition that the object contemplated to be gained by such proceeding was any other than the proper effect and execution of the process. “In such case it is necessary to allege malice, want of probable cause, and that the action on which the process issued has been finally determined in favor of the defendant therein.” Mullins v. Matthews, 122 Ga. 286, 289 (50 S. E. 101), and authorities cited. The plaintiff made no defense to the dispossessory warrant. The petition failed to allege that the plaintiff had fulfilled his part of the rent contract. The petition also failed to allege want of probable cause, and that the action on which the process issued had been finally determined in favor of the defendant therein; and the demurrer was properly sustained. Judgment affirmed. All the Justices concur.