Opinion
55823.
SUBMITTED MAY 4, 1978.
DECIDED JUNE 6, 1978.
Fraud, etc. Fulton State Court. Before Judge Lambros.
John Genins, for appellant.
Cotton, Katz, White Palmer, J. Timothy White, Kenneth Gartlir, Macey Zusmann, James W. Penland, Long, Weinberg, Ansley Wheeler, Charles M. Goetz, Jr., Hurt, Richardson, Garner, Todd Cadenhead, Paul M. Talmadge, Jr., for appellees.
1. This is an appeal from an order of the trial court dismissing the complaint for failure to state a claim for fraud upon which relief can be granted. In view of the new rule announced in Cochran v. McCollum, 233 Ga. 104 ( 210 S.E.2d 13) (1974), this court is unable to affirm the judgment below but must reverse with direction to sustain the motions as for more definite statement, as outlined in Tucker, v. Chung Studio of Karate, 142 Ga. App. 818, 819 (3) ( 237 S.E.2d 223) (1977).
2. The counterclaims alleging that the complaint was filed and is being used wilfully and maliciously for improper purposes and without probable cause should have been dismissed on plaintiff's motion therefor since they are premature. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835 ( 175 S.E.2d 910) (1970); Prairieland Broadcasters v. Thompson, 135 Ga. App. 73, 74 (3) ( 217 S.E.2d 296) (1975).
Judgment reversed with direction. Quillian, P. J., and McMurray, J., concur.