Marable v. Mayer, Son & Co. , 78 Ga. 710 ( 1887 )

Hall, Justice.

In Wilcox vs. McKenzie, 75 Ga. 73, we held that an action to recover, damages for suing out and levying an attachment, and for instituting proceedings to obtain and serving summons of garnishment, could not be maintained, without alleging and providing malice and want of probable cause, and in the absence of such proof, a nonsuit was properly awarded; and that actions for criminal prosecution and civil suits require substantially the same allegations and proof. The declaration in this case failed to allege either a want of probable cause or that the suit on which the action was founded had terminated in favor of the plaintiff. For want of such allegation, it was demurrable, because it set out no cause of action ; and the court committed no error in sustaining the defendant’s demurrer thereto and dismissing the suit. Code, §2982. It is essential to allege circumstances sufficient to satisfy a reasonable man that the plaintiff in the original suit had no ground for proceeding but his desire to injure the plaintiff in this action. The declaration shows that the defendants, who were plaintiffs in the original suit, held an unsatisfied claim against the plaintiff in this suit, which he had given them mortgages to secure; that they had foreclosed their mortgages and caused the property so mortgaged to be levied on; that they refused to grant further indulgence, and thereby injured his business. There is no allegation that that suit was at an end, otherwise than such as may be inferred from the statement that the property had been sold, and if that is to be deemed a termination of the suit, then it ended unfavorably to the plaintiff; nor is there any averment that the plaintiff had suffered other damage than was likely to ensue from the execution of the process against his property and the sale of the same under the levy at the time such sale was made. That these allegations as made are, without more, insufficient to maintain the action, see code, §2983.

Malice may be inferred from the total want of probable cause; but e converso, a total want of probable cause cannot be inferred from the existence of the most express malice. The original suit must be ended favorably to the plaintiff before the right of action accrues. Code, §§2987, 2989, and citations under each ; Cook, vs. Walker, 30 Ga. 519 ; Ventress vs. Rosser, 73 Ga. 535 (h. n. 3), 540, 541.

If it be insisted that the breach of the agreement alleged to have been entered into by the parties when the second mortgage was executed (viz. to give indulgence to the plaintiff, and in consideration of the indulgence, that the mortgage was in fact executed,) will maintain this action, then it is sufficient to reply that the mortgage contains no such stipulation; and there is no allegation that it was left out of the conveyance in consequence of oversight, accident, mistake or fraud. Parol evidence would not be admissible to supply the omission of such a condition, except upon one of the foregoing grounds. Without more, it would seem that a resort to such evidence would be indispensable in order to show this state of facts, unless some contemporaneous writing setting forth the agreement should be alleged; but as there is no direct averment of these facts, or any other from which they can be legiti. mately inferred, the declaration is in this respect fatally defective.

Judgment affirmed.