Opinion
41204.
ARGUED MARCH 2, 1965.
DECIDED APRIL 6, 1965.
Malicious use of process. Macon City Court. Before Judge Phillips.
W. E. Mull, for plaintiffs in error.
Buckner F. Melton, O. L. Crumbley, contra.
1. Grounds of demurrer not argued and grounds of a motion for new trial neither argued nor insisted upon will be treated as having been abandoned.
2. In an action for malicious use of legal process it is necessary to prove: (1) malice; (2) want of probable cause; and (3) that the prior action complained of terminated in favor of the defendant therein prior to the institution of the action for damages based thereon.
ARGUED MARCH 2, 1965 — DECIDED APRIL 6, 1965.
The plaintiff sued Martha Ward and Harvey Ernest Ward to recover damages arising out of an alleged malicious use of legal process. The incident out of which the present suit arose is reported in the case of Ward v. Benge, 109 Ga. App. 624 ( 136 S.E.2d 911). On the trial of the present case the jury returned a verdict for the plaintiff and thereafter the defendant's amended motion for new trial was overruled and it is on such judgment adverse to them that error is now assigned, as well as the judgment overruling demurrers to the plaintiff's petition.
1. The assignments of error complaining of rulings on demurrer are not argued, and the special grounds of the amended motion for new trial neither being argued nor insisted upon are treated as having been abandoned.
2. The sole remaining question is whether the evidence authorized the verdict.
"`As was said by the Supreme Court in Adler v. Adler, 207 Ga. 394, 405 ( 61 S.E.2d 824), "This court does not pass upon the credibility of witnesses, nor the weight to be given evidence on disputed facts. These are questions for the jury. Whether their verdict is contrary to the evidence, or contrary to its weight, or decidedly and strongly against its weight, is a question the law vests in the trial judge's discretion. He may grant a new trial on these grounds, but this court has no such power. Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it." See also Knox v. Knox, 213 Ga. 677, 679 ( 101 S.E.2d 89).' Canal Ins. Co. v. Winge Bros., 97 Ga. App. 782, 787 ( 104 S.E.2d 525). Halpern v. Strickland, 98 Ga. App. 890, 891 ( 107 S.E.2d 227)." Carter v. Chambliss, 101 Ga. App. 494, 496 ( 114 S.E.2d 306).
The evidence adduced on the trial of the case was voluminous, consisting of some 108 pages, and it would indeed serve no useful purpose to set forth such evidence in detail. Suffice it to say that, except as to the evidence that the prior proceeding complained of had terminated in favor of the defendant which was undisputed, most of the evidence for both the plaintiff and the defendants was subject to being considered impeached by the jury because of the sharp conflict between the evidence adduced by the parties. The jury was authorized to find that the three ingredients necessary for a recovery for malicious use of legal process existed: "(1) Malice; (2) Want of probable cause; and (3) That the proceeding complained of had terminated in favor of the defendant therein before suit for damages based upon it was brought." Williams v. Adelman, 41 Ga. App. 424, 427 ( 153 S.E. 224), quoting from Fryer v. Morrison, 32 Ga. App. 312 ( 123 S.E. 40). Accordingly, the trial court did not err in overruling the defendants' motion for new trial.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.