Opinion
30743.
DECIDED FEBRUARY 8, 1945.
Complaint; from Fulton superior court — Judge Hooper. October 16, 1944.
Hewlett Dennis, I. M. Wengrow, A. E. Mayer, for plaintiff.
Bond Almand, George John L. Westmoreland, for defendant.
1. Under the facts of the instant case, no harmful error is shown in the sustaining of the general demurrer to the petition as amended, where the demurrer is directed to the "original" petition.
2. Since the amended petition did not set forth a cause of action for malicious use of legal process or for malicious abuse of process, the court did not err in sustaining the general demurrer thereto.
DECIDED FEBRUARY 8, 1945.
William Beatus brought suit for damages against Max Gluck and Darling Stores Corporation on October 14, 1942. Subsequently, Max Gluck having filed a plea to the jurisdiction, the suit was dismissed as to him. Beatus alleged in his petition as amended that he is the owner of certain real estate in the City of Atlanta; that the defendant Gluck was the president, chief executive, and sole owner of all the outstanding common stock of Darling Stores Corporation; that on or about January 13, 1942, Gluck wilfully and maliciously caused Darling Stores Corporation to institute a suit against him for an accounting with regard to the rents and profits of said real property; that at the time it was well known to both of said defendants that Darling Stores Corporation was not entitled to said accounting, and the real purpose of the suit was to impair his financial credit and standing by preventing him from selling or encumbering the property in question, and also for the purpose of compelling him to permit Darling Stores Corporation to remain as tenant in the property in question; that this purpose was made known to the plaintiff by a statement from Gluck to him; that he has been effectually debarred of a sale of the property and prevented from making a profit of $19,000. He also sued to cover costs attendant upon his defending the accounting suit, and asked that punitive or exemplary damages be imposed on the defendant because of the aggravated circumstances in both defendant's act and intention.
1. The petition, as stated above, was amended. The amendment was allowed and ordered filed subject to objections. The preface to the general and special demurrers stated: "Now comes the defendant, Darling Stores Corporation, and on the filing by the plaintiff of his amendment of October 16, 1944, files this its general and special demurrers to the original petition." The court passed the following order: "After argument the above general grounds of demurrer to the petition as amended are sustained and the petition dismissed." The plaintiff contends that the dismissal of the petition is a nullity because the demurrer was directed solely at the original petition and the court had no authority to pass on the demurrer to the petition as amended. The court's order stated that the demurrer was argued and that he sustained the demurrer to the petition as amended. In the absence of any contention that the trial judge heard argument solely on the demurrer to the original petition or that the question was raised before him that he could not pass on the demurrer to the petition as amended, in view of the ruling of the court, it will be presumed that the parties argued the demurrer to the petition as amended. Moreover, the amended petition was subject to general demurrer and in the absence of a showing that only the demurrer to the original petition was ruled on or that opportunity to amend the amended petition was denied, no harmful error is shown in the court's ruling.
2. The petition does not allege a cause of action for malicious use of process because termination of the suit for accounting is not alleged. Neither does the petition set forth a cause of action for malicious abuse of legal process. Malicious use is the malicious suing out of process without probable cause. Malicious abuse of process is the improper use of process after it issues. Davison-Paxon Co. v. Walker, 174 Ga. 532 (2) ( 163 S.E. 212). The present action is not good on either theory because if the action was filed with probable cause, no matter with what motive, no improper use has been made of it since it was filed which has caused the plaintiff to do anything which was beyond or outside the purposes of the accounting suit; and if the action was filed without probable cause, the remedy in this case is exclusively for malicious use of process and no termination of the litigation is alleged, as above stated. Construing the petition most strongly against the pleader on demurrer, it alleges that the action for accounting was filed maliciously and without probable cause even though the identical words are not employed and no improper use after issue is alleged. The plaintiff alleges that he owned the property in question, and it does not appear how such an action for accounting could have affected the selling or incumbering of the property. It does not appear that the defendant used the accounting suit to force the plaintiff to permit it to further occupy the premises mentioned. We have found no case holding that a mere attempt to use legal process for an illegal purpose would suffice to combine with improper motive to constitute a cause of action for malicious abuse of process. The court did not err in sustaining the demurrer to the petition as amended and dismissing the action.
Judgment affirmed. Sutton, P. J., and Parker, J., concur.