Defnall v. Schoen , 73 Ga. App. 25 ( 1945 )

1. "There is a malicious abuse of legal process where a party employee civil process wrongfully and unlawfully and for a purpose not intended by law, and for such abuse of civil process an action will lie." King v. Yarbray, 136 Ga. 212 (71 S.E. 131).

2. Applying this rule of law to each of the four counts in the petition. the judge erred in sustaining the general demurrer to each of them on the ground that their allegations did not set forth a cause of action against the defendants; and in dismissing the petition on the ground that as a whole its allegations did not set forth a cause of action.

3. The special demurrer to count 4 moved to strike the same on the ground that this count contained a misjoinder of causes of action, in that it was a suit on a contract, while the other three counts were based on tort. The cause of action stated in this count was a tort; and, the contract being alleged merely by way of inducement, the court erred in sustaining such special demurrer.

DECIDED OCTOBER 6, 1945. 1. H. Defnall brought suit in four counts against C. C. Schoen Sr., and C. C. Schoen Jr. The parts of the petition material to understanding of the exceptions urged are: "Count 1. Said defendants have injured and damaged him [plaintiff] in the sum of $5000 as the proximate result of the following acts of themselves and their agents; that defendants in their names and through their agents, and for their benefit caused to and did swear out a dispossessory warrant, number 73,355, civil court of Fulton county, Georgia, on August 3, 1942, with malice and without probable cause therefor; that to procure said warrant the defendant's agents did then and there falsely and wrongfully swear that plaintiff, the said tenant, fails to pay rent now due on said house and premises, situate at 548 Plum Street, N.W., City of Atlanta, Fulton County, the property of defendants, for whom deponent is the duly constituted agent; that the said tenant fails to pay the rent now due on said house and premises and that said tenant is holding said house and premises over and beyond the term for which the same were rented or leased to him; that the said owner desires and has demanded possession of said house and premises, and the same has been refused by [naming plaintiff]; and deponent makes this affidavit that a warrant may issue for the removal [naming plaintiff] from said house and premises and in making said affidavit the agent and the defendants could and should have known that said affidavit was wholly untrue; that the sole reason for the swearing out of said warrant was occasioned and caused by a demand for an increase of rental during his term, . . for which increases he would not agree to pay; . . that at said time said house rented for $10 per month, when defendants asked him to pay $16 per month; that it was then rented to plaintiff and he occupied part of same and had it subrented as to the other monthly rental. That at said time the rental had been frozen by an administrative order number 35 of the Atlanta Area under O. P. A., which was under the authority of U.S. Public Law 421 (U.S.C.A. App. Title 50, § 925 (e)); that said acts wronged and hurt plaintiff and his damages were the result thereof: that he was thereby forced to move and vacate said premises, on pain of being evicted.

"Count 2. That defendants in their names and through their agents for the defendants and for the benefit of defendants did sue out, without cause and maliciously, a dispossessory warrant numbered 77054 in the civil court of Fulton County, Georgia, on the 18th day of January, 1944; that to procure said warrant the defendant's agent did then and there falsely and wrongfully swear that plaintiff, the said tenant, fails to pay rent now due on said house and premises situated at 548 Plum Street, N.W., City of Atlanta, said county, the property of defendants, for [whom] the deponent is the duly authorized agent; that the said tenant fails to pay the rent now due on said house and premises, and that said tenant is holding said house and premises over and beyond the term for which the same were rented or leased to him; that the said owner desires and has demanded possession of said house and premises, and the same has been refused by [naming plaintiff]; and deponent makes this affidavit that a warrant may issue for the removal [naming plaintiff] from the said house and premises; and in making said affidavit said agent and the defendants could and should have known that said affidavit was wholly untrue; that the sole reason for the swearing out of said warrant was occasioned and caused by a demand of plaintiff that defendants and their agent should pay him the sum of $140 for labor and material to improve said premises and house, which they contracted and authorized him to do for said sum, and which he did; and that defendants' agents had further asked him to replace a door, which the tenant of defendants in the other portion of the house had taken down, and to pay one-half of a plumbing bill to unstop a water closet, and to get the benefit of said labor, materials, and improvements in addition to what he was and had been paying as the rental of said premises, although he was then paying three dollars in excess of the rental for said premises, the same having been frozen at $10 per month for the whole house under administrator's order No. 35 of O. P. A. under authority of Public Law 421 of the U.S. (U.S.C.A. App. Title 50, § 925 (e)); and that he had tendered them all the rent he was due prior to January 18, 1944, and the said defendants and agents had refused to take the same, that is, he offered them $8 due at that time, although it was in excess by three dollars of the aforesaid fixed rentals; that said acts wronged and hurt plaintiff, and he was thereby caused to be wrongfully evicted from said house and premises as the proximate result of said acts and worked said damages to him.

"Count 3. That they are indebted to him under the terms of the U.S. Public Law number 421, § 205 (e), U.S.C.A. App. Title 50, § 925 (e), in the total sum of $50 as a minimum penalty for an overcharge made in the fixed rental of 548 Plum St., N.W., Atlanta, said county, in that they sought on and before the 3rd day of August, 1942, to exact and obtain from him an increase in rental for said house of $6 per month for said house, whose rental had [been] fixed under said law and O. P. A. administrator's order No. 35, Atlanta area, effective August 1, 1942, for the rate paid thereon as of March 1, 1942, which was $10 per month for the entire house, and because he would not pay said increase asked and demanded, defendants through their agents did cause a warrant for his eviction to be sworn out, and thereby forced him to remove therefrom on pain of said eviction; and that they are further indebted to him under the term of said act and administrative order aforesaid in a reasonable sum for the recovery of said penalty; and that all said acts were in wilful violation of his rights and of said act and order, and the same was well known and should and could have been known to defendants and their agents who had been collecting his rents and swore out said eviction warrant. That they are indebted to him under the terms of U.S. Public Law 421, § 205 (e), U.S.C.A. App. Title 50, § 925 (e), in the total sum of eighty-one dollars for overcharge of a fixed rental of house and premises known as 548 Plum St., N.W., Atlanta, said county, in that they sought, charged, exacted, and collected of him the sum of three dollars in excess of the fixed charge for a portion of said house, that is, eight dollars per month for nine months from April to December, 1942, inclusive, when his fixed rental therefor was five dollars for his portion of said house, whose rental was fixed as of March 1, 1942, by the administrator's law, order No. 35, Atlanta area, under and by virtue of said order and law; and that he is entitled under said law to recover three times the said overcharge and a reasonable attorney's fee for recovery thereof; that during said time they employed him to do certain labor, furnish materials in connection therewith to improve said premises, and repair the same, [for] which they agreed to pay him $140 . . , which contract he performed and demanded his said pay, and which pay they refused and still refuse to pay; and, while he was seeking to collect the same, they falsely, wrongfully, and maliciously swore out an eviction warrant against him for said premises, and forced him to be evicted therefrom on a false affidavit maliciously made by agents of defendants, as their agents and for defendants' benefit, in civil court of Fulton County, said State, numbered 77,054, on January 18, 1944, and this was done to defeat his [plaintiff's] said earnings and thereby to exact a higher rental than fixed under authority of U.S. Public Law No. 421, § 205 (e), U.S.C.A. App. Title 50, § 925 (e), and an administrative order number 35, Atlanta area, effective August 1, 1942, fixing the rental for said area as of March 1, 1942, which was $10 per month for said house numbered 548 Plum Street, N.W., City of Atlanta, said county, and by collection of said rentals so fixed and in addition three dollars per month from April to December, 1943, inclusive, from plaintiff, and by procuring said labor, materials, and improvements, and refusing to pay him therefor, the defendants have become indebted to him three times said $140, or $420, and a reasonable attorney's fee to recover the same, by which means they have overcharged him and exacted and obtained from him during said months $140 in excess of said rentals as well as the said three dollars per month overcharges during said month."

The defendant demurred to each count separately and to the petition as a whole, as will appear later in the opinion. The judge sustained the demurrers and dismissed the petition. The plaintiff then excepted to such judgment. 1. The defendant contends that counts 1 and 2 of the petition were based upon the theory of malicious use of process, and that it was necessary to allege that the proceeding complained of had been terminated in favor of the defendant therein, before the suit based upon it was brought. The plaintiff contends that these counts were based upon malicious abuse of process, and that it was not necessary to allege that the proceedings to dispossess him had terminated in his favor. If these two counts were based upon the malicious use of process, it was necessary to allege a termination of the suit in favor of the plaintiff, as contended by the defendant. If they were based upon malicious abuse of the process, such an allegation was not necessary. King v. Yarbray, 136 Ga. 212, 213 (71 S.E. 131).

"An action for malicious abuse of legal process will lie where legal process has been employed for some object other than that which it was intended by law to effect; for example, where a man has been arrested or his goods seized in order to extort money from him, even though it be to pay a just claim other than the one in suit, or in order to compel him to give up possession of a deed or other thing of value, not the legal object of the process. . . The malicious use of legal process may give rise to an action, where no object is contemplated to be gained by it other than its proper effect and execution." Porter v.Johnson, 96 Ga. 145 (23 S.E. 123). "There are three essential elements which must appear before one can recover for malicious use of legal process: (1) malice; (2) want of probable cause; and (3) that the proceeding complained of had terminated in favor of the defendant therein before suit for damages based upon it was brought." Williams v.Adelman, 41 Ga. App. 424, 427 (153 S.E. 224). "It is a well-established rule that an action for damages for the malicious abuse of legal process may be maintained before the action in which such process was issued is terminated." Mullins v. Mathews, 122 Ga. 286, 289 (50 S.E. 101).

The process here in question is a dispossessory warrant. Code, § 61-302. The legal object to be attained by suing out a dispossessory warrant is the obtaining possession of the premises. The case made by the allegations of court 1 of the petition is that the legal process (dispossessory warrant, or a warrant for a tenant's removal) was employed, not to obtain possession of the premises for a failure to pay the rent allowed by law, but to compel the plaintiff, in the instant case, to give up in money six dollars per month, whether it be denominated by the defendant as rent or by any other name, in excess of the maximum amount which he knew was allowed by law under an administrative order for freezing rents in the area in question, i. e., under the O. P. A., as authorized by U.S. Public Law 421 (U.S.C.A. App. Title 50, § 925 (e)). In other words, the petition alleges that the defendant maliciously and without probable cause employed the process (dispossessory warrant), not for the collection of the $10, the maximum amount of rent per month allowed under said order of the O. P. A., which was the only maximum legal amount that could be collected as rent, but employed the process for the ulterior purpose solely of coercing the plaintiff into giving up six dollars in money, which, under the law, could not have been the legal object of the process. In short, the allegations are that the sole or entire proceeding was employed for a specific unlawful object. Under such allegations, the petition sets out an action of legal abuse of process. King v. Yarbray, 136 Ga. 212, 214 (71 S.E. 131); Brantley v.Rhodes-Furniture Co., 131 Ga. 276, 282 (62 S.E. 222). Thus, the contention of the defendant that it was essential for the plaintiff to allege that the "proceeding to evict him" had terminated in the plaintiff's favor was not meritorious.

2. The principles of law which were applied in overruling the general demurrer to count 1 of the petition are applicable to the allegations of count 2 of the petition, and we, therefore, hold that it was error to sustain the general demurrer to count 2.

3. Under section 925 (e) of the U.S.C.A. App. Title 50, it is provided: "If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. In such action, the seller shall be liable for reasonable attorney's fees and costs as determined by the court, plus whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based, as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation. For the purposes of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be; and the word ``overcharge' shall mean the amount by which the consideration exceeds the applicable maximum price." Applying this rule in connection with the other rules of law applicable to the allegations of count 3 of the petition, we think that the court erred in sustaining the general demurrer to this particular count.

4. The special demurrer to count 4 moved to strike the same on the ground that it contained a misjoinder of causes of action, in that it was a suit on a contract, while the other three counts were based on tort. The cause of action stated in this count was a tort; and, the contract being alleged merely by way of inducement, the court erred in sustaining such special demurrer.

5. The general demurrer to count 4, urging that this count did not set up a cause of action, was erroneously sustained.

6. It follows from the above rulings that the court erred in sustaining the general demurrer to the petition as a whole and in dismissing it.

Judgment reversed. Broyles, C. J., and Gardner, J., concur.