Pricev.Fidelity Trust Company

Court of Appeals of GeorgiaFeb 15, 1947
74 Ga. App. 836 (Ga. Ct. App. 1947)

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31512.

DECIDED FEBRUARY 15, 1947. REHEARING DENIED FEBRUARY 28, 1947.

Malicious abuse of process; from Fulton Superior Court — Judge Pomeroy. November 4, 1946. (Application to Supreme Court for certiorari.)

Richard T. Nesbitt, for plaintiff.

Smith, Kilpatrick, Cody, Rogers McClatchey, Harry S. Baxter, Sidney Haskins, for defendant.


1. The nature of an action is not determined by the designation of the pleader, but by the contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the kind of relief sought.

( a) Under the allegations of the petition in this case, the action was one for malicious use of legal process.

2. "No damages are recoverable for a malicious use of process where the defendant's person or property is not seized and he sustains no damage as a result of the institution of the suit except such as necessarily results in all suits prosecuted to recover in like causes of action."

( a) The plaintiff was not arrested nor his property seized, and the attorney's fees, costs of giving bond, loss of time, etc., in defending the dispossessory warrant proceedings instituted by the defendant and the humiliation, embarrassment, mortification, and alleged pain and suffering about the outcome of those cases were not special damages for which the plaintiff could recover in the present case.

3. Accordingly, the trial judge did not err in sustaining the general demurrer and the motion to dismiss, and in dismissing the action.

DECIDED FEBRUARY 15, 1947. REHEARING DENIED FEBRUARY 28, 1947.


Roy V. Price sued Fidelity Trust Company, a corporation, and alleged substantially: that the defendant, on March 30, 1945, notified him and also the Atlanta Defense Rental Area Office that his lease on a named apartment in the City of Atlanta had been canceled, on the ground that the plaintiff had been committing a nuisance in and on the premises; that said lease did not expire until August 31, 1945; that a hearing was had before an official of the Area Rent Office, who advised that the case was one for the State courts, and, on April 13, 1945, the defendant sued out a dispossessory-warrant proceeding against this plaintiff, on the ground that he was holding the premises over and beyond the term of his lease; the defendant filed a counter-affidavit and bond and the case was tried and resulted in a verdict and judgment in favor of Price and against Fidelity Trust Company; and the defendant's motion for a new trial was overruled on May 28, 1945.

Price had made timely tender of rent on said apartment and had also tendered the rent for the following month of June, 1945, and the defendant refused to accept the same. On June 7, 1945, the defendant herein instituted another dispossessory-warrant proceeding against Price for the apartment, on the ground of non payment of rent, and this case was tried and terminated in a judgment in favor of Price. It was alleged that the dispossessory-warrant proceedings were false and malicious and without probable cause, and had been finally terminated in favor of the present plaintiff, and that he was damaged in the sum of $270, in that he incurred attorney's fees for $250 and $20 in giving bond in defending said dispossessory proceedings; and he also sought to recover $9730 as vindictive or punitive damages. The plaintiff also alleged that the dispossessory proceedings caused him great worry and anxiety over the welfare of his family, and caused him pain and suffering which injured his health.

The defendant filed demurrers to the petition and a written motion to dismiss. The trial judge sustained the general demurrer and motion to dismiss, and dismissed the action. The plaintiff's exception here is to that judgment.


1. The plaintiff in error in his amended petition and also in his brief here refers to the proceeding as one for the malicious abuse of process; but, on the contrary, the allegations of the petition show that he was seeking to recover for the malicious use of legal process. This action was based on the two dispossessory-warrant proceedings instituted to dispossess Price from the apartment in question, which he alleges were malicious and without probable cause, and that they terminated in favor of him as tenant. "Malicious use of legal process is where a plaintiff in a civil proceeding employs the court's process in order to execute the object which the law intends for such a process to subserve, but proceeds maliciously and without probable cause. In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein. Malicious abuse of legal process is where the plaintiff in a civil proceeding wilfully misapplies the process of a court in order to obtain an object which such a process is not intended by law to effect. In a suit for damages growing out of such a perversion of the court's process, it is not necessary to show that the former litigation was without probable cause, or that it terminated prior to the institution of the suit for damages." McElreath v. Gross, 23 Ga. App. 287 (1, 2) ( 98 S.E. 190); Robinson v. Commercial Credit Co., 37 Ga. App. 291 ( 139 S.E. 915); Brantley v. Rhodes-Haverty Furniture Co., 131 Ga. 276 ( 62 S.E. 222); Baldwin v. Davis, 188 Ga. 587 ( 4 S.E.2d 458).

2. "No damages are recoverable for a malicious use of process where the defendant's person or property is not seized and he sustains no damage as a result of the institution of the suit except such as necessarily results in all suits prosecuted to recover in like causes of action." Swain v. American Surety Co., 47 Ga. App. 501 (1) ( 171 S.E. 217), and citations. It was ruled in Jacksonville Paper Company v. Owen, 193 Ga. 23 ( 17 S.E.2d 76): "The prosecution of a civil action maliciously and without probable cause gives rise to a cause of action for malicious use of process only when `the person of the defendant was arrested or his property attached, or some special damage was done to him.' Mitchell v. Southwestern R., 75 Ga. 398 (3); Woodley v. Coker, 119 Ga. 226 ( 46 S.E. 89); American Wholesale Corporation v. Kahn, 42 Ga. App. 411 ( 156 S.E. 324); Slater v. Kimbro, 91 Ga. 217 ( 18 S.E. 296, 44 Am. St. R. 19); Stewart v. Mulligan, 11 Ga. App. 660 ( 75 S.E. 991); Haverty Furniture Co. v. Thompson, 46 Ga. App. 739 ( 169 S.E. 213); Swain v. American Surety Co., 47 Ga. App. 501 ( 171 S.E. 217). It does not appear that in the former action the defendant was arrested, or that his property was attached; and the only damages claimed are simply such as would normally accrue from the prosecution of such a suit, such as attorney's fees, expense of transportation of witnesses to hearings, loss of time in preparation of case, half of the fee of the reporter, and half of the fee of the auditor. In the Swain case, supra, the Court of Appeals, we think, correctly ruled: `No damages are recoverable for a malicious use of process where the defendant's person or property is not seized and he sustains no damage as a result of the institution of the suit, except such as necessarily results in all suits prosecuted to recover in like causes of action. . . Expenses incurred by the defendants in making preparations to defend the suit, including traveling expenses, hotel bills, printing, and other expenses for this purpose, employing attorneys to defend the suit, and damages for embarrassment, mortification, humiliation, and being "held up to public scorn and ridicule," are expenses and damages resulting from the institution of all suits prosecuted to recover for like causes of action, and do not constitute any special damage or injury not necessarily resulting from the prosecution of the suit for like causes of action.'" See also 38 C. J. 393, §§ 19, 20; 34 Am. Jur. 707-710, §§ 10, 11.

The plaintiff in error was not arrested nor was his property seized. The attorney's fees, costs of giving bond, loss of time, etc., in defending the dispossessory-warrant proceedings, the humiliation, embarrassment, mortification, and alleged pain and suffering caused by worrying about the outcome of those cases are not special damages for which the plaintiff can recover in the present action, under the rulings made by this Court in Swain v. American Surety Company, supra, and cases there cited, and by the Supreme Court in Jacksonville Paper Company v. Owen, supra.

3. Accordingly, the trial judge did not err in sustaining the general demurrer and the motion to dismiss, and in dismissing the action.

Judgment affirmed. Felton and Parker, JJ., concur.