Jones v. Elsas

Hooper, J. Stacy Jones, plaintiff in error, sued W. R. Elsas, defendant in error, for damages arising out of the alleged malicious use of bail-trover process. The petition, construed most strongly against the plaintiff, together with all inferences therefrom unfavorable to him, made the following case: Elsas inspected the premises of Jones with the view of renting a room from him. Rent for the room was payable in advance. Shortly after such inspection Elsas sent a truck-load of furniture to the house of Jones, in which it was placed. Notwithstanding these facts, Elsas sued out bail-trover proceedings against Jones to recover said furniture, but the trover suit terminated in favor of Jones, because Elsas failed to prove that he had made a legal demand for the property prior to institution of the bail-trover proceeding. It is alleged that the act of Elsas in instituting that proceeding was “wanton, malicious, and without probable cause,” and that the allegation made therein as to demand having been made upon the defendant was wilfully and maliciously false, and known so to be to the plaintiff therein. Held: It appearing from the allegations of the plaintiff’s petition in this case that the property sought to be recovered by the plaintiff in the trover [35] suit was in fact liis own rightful property, it not appearing that the defendant in said action (who had possession of the property) had any claim thereto, and it appearing that the plaintiff in trover failed to recover therein only because of the absence of proof of prior legal demand for the property involved, the charge in the petition in this case, that the plaintiff in the trover suit instituted the same wantonly, wilfully, and without probable cause, is not sustained by the facts alleged in the petition, and the general demurrer thereto was properly sustained. See Civil Code (1910), § 4440; Smith v. National Clothing Co., 29 Ga. App. 421 (116 S. E. 52); Hallman v. Ozburn, 38 Ga. App. 514 (144 S. E. 344); Williams v. Adelman, 41 Ga. App. 424 (153 S. E. 224). Decided November 16, 1932. Reuben A. Garland, for plaintiff. Thomas M. Slubbs, McDaniel, Neely <& Marshall, for defendant. Judgment affirmed. Broyles, C. J., concurs. MacIntyre, J., not presiding.