Watkins v. Price Mercantile Co.

Bell, J. 1. In a suit for malicious use of legal process, where the answer admitted an allegation of the petition that the process was sued out maliciously and without probable cause, but the answer was later amended by striking the admission and inserting in lieu thereof a denial of the allegation, the admission, though introduced as evidence for the plaintiff, was not conclusive, and could be explained or disproved by the defendant. Alabama Midland Railway Co. v. Guilford, 114 Ga. 627 (40 S. E. 794); Mims v. Jones, 135 Ga. 541, 544 (69 S. E. 824) ; McConnell v. Gregory, 146 Ga. 475 (91 S. E. 550). [273] Decided May 11, 1932. Hattie B. Bell, Grady Gillon, for plaintiff in error. James L. Wimberly, West & West, contra. 2. The evidence demanded the inference that the defendant acted upon probable cause in suing out and prosecuting the search warrant, and the trial court therefore properly directed a verdict in favor of the defendant in the suit for damages. Compare Sirmans v. Peterson, 42 Ga. App. 707 (157 S. E. 341). 3. The superior court did not err in refusing to sanction the plaintiff’s petition for the writ of certiorari. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.