Farrar Lumber Co. v. Hogan

Jenkins, P. J.

(After stating the foregoing facts.) We think the trial judge correctly treated the suit as one based entirely upon the alleged malicious use of legal process. We do not think that the amendment just above quoted attempts to add to or change the character of the suit. The quoted amendment in no way shows that Hogan refused to carry out the terms of the agreement after the litigation had settled the rights of the parties thereunder. To the contrary, the original petition plainly states that the first cutting over of the premises in removing the pine timber so littered the ground that for this reason it was impracticable to reenter in order to cut and remove the hardwood timber. The suit being plainly based upon an alleged malicious use of legal process, and being fairly tried 'as such, it is unnecessary to pass upon the point raised by the cross-bill of exceptions.

Judgment on main bill of exceptions affirmedj cross-bill dismissed.

Stephens and Smith, JJ., concur.