Mitchell v. Southwestern Railroad , 75 Ga. 398 ( 1885 )

Blandford, Justice.

1. There are several questions in this case. It is insisted that there was no jurisdiction in Sumter superior court to hear and determine this case, because there was no agent of said company resident in Sumter county, upon whom service could be perfected. To this the plaintiff replied, that the acts of defendant and the damage which was done were done in Sumter county. We think that section 3406 of the Code, which enacts that railroad companies shall be liable to be sued in any county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, their officers, agents or employés, for the purpose of recovering damages for such injury, fully answers the objection that the supe rior court of Sumter county had no jurisdiction of the case. So we hold that the superior court of Sumter county had jurisdiction in this case.

2. The next question made is, that there was no service of the declaration and process which authorized the superior court of Sumter county to hold jurisdiction of this case. The evidence upon the record showed that the sheriff had returned that he had served a certain person as agent of defendant at the depot in said county; also that a second original of the declaration and process had been served on the president, one Jones, of said railroad company. We think that this was sufficient service. Code, §3369, et seq. The superior court of Sumter county having jurisdiction of the case, if there was no provision in the statute, the court, by necessary implication, would have the light to assert its jurisdiction by causing its process to be served on the proper officer of the corporation in person, if residents in this state, as was done in this case, or by publication, if non-resident. Code-, §§2369, 3370, et seq.

3. The next question in this case is, can an action be maintained in this state for the bringing of a civil suit maliciously and without probable cause. In England, before the statute of 52 Hen. III., 1277, it was the practice constantly to hold that, where one sued another maliciously and without probable cause, he was liable to such person in damages upon an action on the case, but since the passage of that statute, which gives costs to the defendant per falsum clamorem, the bringing of a civil suit maliciously and without probable cause was not a ground upon which an action could be maintained. Yet there was this distinction : when an action was sued out maliciously and without probable cause, whereby the person of the defendant was arrested, or his property attached, or any special grievance to defendant, then in such a case the action would lie, and, as we understand, that was the common law when this state was a province, and when our adopting statute was passed in 1784, and would have been the law without this statute. There is a case which states this doctrine clearly and explicitly. In Savil vs. Roberts, 1 Salkeld R., 13, a decision by Lor d Holt, which is declaratory of the common law, in which it is stated that, since the passage of the act allowing costs to defendants where plaintiffs are non-suit or fail to recover, an action for maliciously suing out an action cannot be maintained-Yet, before this statute such actions were constantly brought and maintained; but since the passage of the act, in order to maintain the action, it must be shown that the defendant maliciously sues the plaintiff either with intent to imprison him or do him some special prejudice; then an action on the case lies, and the grievance must be set out specially. We take this to be the common law, and as there is no statute changing this law, it is of force in this state.

The declaration in this case and the proofs offered by the plaintiff tending to sustain it, showed that the defendant consented that one Coker might erect a certain mill-dam, which would overflow a portion of defendant’s right-of-way. This consent or license was given by the superintendent of defendant. That Coker sold to Mitchell, the plaintiff, and Mitchell procured a similar license. The dam being broken in consequence of a flood, defendant filed a bill to enjoin the plaintiff from rebuilding it. The chancellor granted the injunction, which was interlocutory, and on the final trial, a decree was rendered for the present plaintiff, and the bill dismissed; and this action was brought to re cover damages which the plaintiff had sustained from the malicious suing out of said injunction without probable cause, whereby he had sustained special damage in being deprived of the use of his property. The court, when the proofs were submitted by the plaintiff, granted a non-suit, and the questions made here arise from this action of the court.

4. It is further contended by the able and learned counsel for defendant in error, as the case or action, which is alleged to have been brought without probable cause, and maliciously, was a case in equity, and as the damages were consequent upon an injunction granted by the chancellor, that no action would lie in such a case; but we fail to perceive any difference between a case maliciously and without probable cause prosecuted at law or in equity, when special damage has accrued to the party. In our judgment no such distinction exists. We are aware that there is respectable authority to the contrary, but we think that the current of authority is with our view of the law. The admirable article of M. W. Hopkins, Esq., in the Central Law Journal of March 28, 1884, fully examines this subject, and he collates and refers to all the authorities on the same. The conclusion which we have arrived at is that the court erred in granting the non-suit in this case.

Judgment reversed.