Davison-Paxon Co. v. Walker

Broyles, C. J.

1. The court did not err in allowing the amendment to the second count of the petition (the demurrer to the original second count having been overruled, and that judgment having been reversed by this court), the amendment being allowed before the remittitur from this court was made the judgment of the trial court.

2. When this case was here before (45 Ga. App. 395, 165 S. E. 160), this court held that the second count of the petition failed to set out a cause of action for malicious abuse of legal process. That count as subsequently amended contained no material fact (material in such an action) that was not set forth in the original count. It follows that under the previous ruling of this court (which has become the law of this case) the court erred in overruling the general demurrer to the second count as amended.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.