Brantley v. Rhodes-Haverty Furniture Co. , 131 Ga. 276 ( 1908 )

Lumpkin, J.

(After stating the foregoing facts.)

1, 2. This case does not require a discussion of the various forms of action which may be brought to recover damages for an injury sustained by reason of the wrongful use of legal proceedings or process, according to the facts of any particular case. It is enough to consider whether this action is one for malicious prosecution (using the term in a broad sense, so as to include both criminal prosecutions and the similar malicious use of legal process consisting in instituting and prosecuting a civil ease without probable cause), or whether the petition sufficiently sets out a case for a malicious abuse of legal process. If an action has been instituted and prosecuted with malice and without probable cause, a suit for malicious prosecution will lie. If a party knowingly employs process, legally and properly issued, wrongfully and unlawfully for a purpose which it is not intended by law to effect, there is a malicious abuse of process, and an action will lie therefor. In the former class of actions it is necessary to allege malice, want of probable cause, and that the action in which the process issued has been finally determined in favor of the defendant therein. .In the latter class a suit may be maintained before the action in which such process was issued has terminated. It has been said that “the principal distinction between an action for malicious abuse of process and one for malicious prosecution is, that while the former lies for an improper use of the process after it issues, the latter is a malicious suing out of the process without probable cause.” 19 Am. & Eng. Enc. Law, 630-632; Porter v. Johnson, 96 Ga. 145 (23 S. E. 123); Mullins v. Matthews, 122 Ga. 286 (50 S. E. 101); 1 Jaggard, Torts, 632. Taking the allegations of the plaintiffs declaration as a whole, we think they set out a cause of action for a malicious abuse of legal process. As amended, 'the petition alleged that the affidavit to obtain bail process was made maliciously and without probable cause, and for the purpose of forcing plaintiff in the present case to give up a certain piece of jewelry which she wore on her person, and to compel her to pay a certain debt. And again it was alleged that the purpose of the process was not to obtain the furniture or bond, but to coerce payment; and that it was used for the purpose of having her arrested and compelling her, while under arrest, to surrender a piece of jewelry as security, and to sign a paper agreeing to pay $10 per month until the balance due on the furniture which she had bought should be settled. The legitimate purpose of making an affidavit to require bail in an action to recover personal property is to require bond to be given for the forthcoming of the property to answer such judgment, execution, or decree as may be rendered or issued in the case, of, on failure thereof, to have the officer seize the property, or, if it is not to be found, to have the defendant committed to jail until tlie property shall be produced or bond be given, unless the defendant shall be released without security, as provided in section 4608 of the Code. Civil Code, §§4604-4608. It is not the legal purpose of such a proceeding to compel the defendant to give up other property as security for a debt, nor to force the defendant to enter into a new and different contract in regard to payment, or else go to jail. While debtors ought to pay their debts, and parties may settle their controversies or' their lawsuits, yet, if a bail process and arrest under it are used, not for the purpose of obtaining security as provided by law, or to cause the property to be seized, but maliciously for the purpose of coercing the delivery to the plaintiff of other property as a security for a debt and the making of a new contract, this is an abuse of legal process. While the petition was originally subject to demurrer, and the pleader at first apparently had in mind both forms of action, as finally amended a cause of action for malicious abuse of legal process was sufficiently set out. It was alleged that plaintiff did not seek to recover-for different torts or causes of action; but that the petition stated’ the facts so as to show the circumstances of a single tort. There was no error in overruling the demurrer to the petition as amended.

3. The granting of a nonsuit was erroneous. The evidence showed, that the plaintiff was arrested under the bail-trover process, and carried first to the office of her attorney, and then1 to the office of the attorneys for the plaintiff in that proceeding; that she was detained in custody for about five hours; that the representative of the then plaintiff knew that she could neither produce the property nor give bond, and was informed that the property was in the possession of another, and that Mrs. Brantley was at the time endeavoring to recover possession of it. According to her testimony, the representative of the furniture company recognized her inability to give bond or to produce the property, but proposed to her to surrender to him a piece of jewelry which she wore on her person, and to enter into a contract for the payment of the balance due on the furniture in installments of ten dollars per month. She at first declined to do this; but after being held in custody for a considerable length of time, and under fear of haying to go to jail, she at last yielded, signed the paper which was prepared for her by the representative of the company, and gave him her diamond pin as security, so as to be released from custody. What the jury may determine, with all the evidence before -them, we do not know. .But there was enough to have required a submission of the case to the jury, and a nonsuit should not have been granted.

Judgment on main bill of exceptions reversedj on cross-bill affirmed.

All the Justices concur.-