McElreath v. Gross

Jenkins, J. (After stating the foregoing facts.) 1. It was manifestly not error to sustain the demurrer so far as the first count, pertaining to the malicious use of process, was concerned. The lack of probable cause is one of the necessary, elements to be alleged and proved in an action of this character. In the case of Short v. Spragins, 104 Ga. 628 (30 S. E. 810), the Supreme Court said: “When an equitable petition for injunction and the appointment of a receiver, which fairly and honestly set forth the facts relied upon by the plaintiffs therein, was presented to the judge of the superior court, who entered thereon an order sanctioning the petition, restraining the defendants as prayed and appointing a temporary receiver, this action by the judge afforded conclusive evidence of probable cause -for the bringing of the suit, although at an interlocutory hearing thereafter had the order above mentioned was rescinded by the judge as having been, improvidently granted upon the facts alleged.” See also Georgia Loan & Trust Co. v. Johnston, 116 Ga. 628 (43 S. E. 27). 2. Nor do "we think that there was error in sustaining the demurrer in so far as it pertained to the second count of the petition, which sought to set up a malicious abuse of legal process. No misapplication or perversion of the court’s process is made to appear. The object attained in suing out the petition for injunction was not a perversion "of that process. If the purpose and effect of suing out the process had been to maliciously injure,, harrass, and humiliate the plaintiff, and it had been instituted without probable cause, but not actually put to some unauthorized use, there would have been a malicious use of a legal process; but in order for there-to be a malicious abuse o'f.process, it must be wilfully misapplied or perverted to some use which the law did not intend that such a process should subserve. Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276, 281 (62 S. E. 222). It does [290] not appear that the process was employed for any purpose other than that which such a process was intended by law to effect, since the interlocutory granting of the injunction as prayed was the sole use made or object attained. As to what the present defendants did, the allegations end there. The mere fact that the institution of such a proceeding and the granting of such an order might of itself have incidentally caused the worry,, annoyance, and humiliation alleged, and might also, as charged, have occasioned the usual trouble and expense attending such litigation, could not be taken as^a perversion or misapplication of the process. But if the process had been misapplied and perverted to another and different use, such as the law did not intend such a process to subserve, and if by reason of such perversion the intended worry, trouble, and expense had resulted, then such an action for damages as is now referred to would properly lie. In making clear the father fine but vital distinction which it is here sought to show, the statement in 19 Am. Eng. Enc. Law (2d ed.), 632, quoted by the Supreme Court in Brantley v. Rhodes-Haverty Furniture Co., supra, is helpful. “The principal distinction between an action for malicious abuse of process and one for malicious prosecution is that while the former lies for an improper use of the process after it is issued, the latter is an action for the malicious suing out of the process without probable cause.” See also Porter v. Johnson, 96 Ga. 145, 149 (23 S. E. 123); Mullins v. Matthews, 122 Ga. 286 (50 S. E. 101); Clement v. Orr, 4 Ga. App. 117 (60 S. E. 1017). Judgment affirmed. Wade, C. J., and Luke, J., concur.