The appellant sued to collect the balance allegedly due from the appellees on a promissory note, and the appellees counterclaimed for damages for libel, contending that the suit had been brought maliciously, in bad faith, and without just cause. This is an interlocutory appeal from the denial of the appellant's motion for summary judgment on the counterclaim. Held:
1. The appellees acknowledge in their brief that the only libel they allege "is the libel of the suit being filed in the first place." This is no libel at all. Pursuant to OCGA 51-5-8
(Code Ann. 105-711), "[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous." See Garrett v. DeWorken, 148 Ga. App. 656
, 657 (252 SE2d 81
) (1979). The appellant was accordingly entitled to judgment as a matter of law on the libel claim.
2. The allegations that the appellant acted maliciously, in bad faith and without just cause in filing the suit may be deemed to set forth a claim for malicious use of process; however, a claim for malicious use of process in a civil action may not be asserted by counterclaim in that action but must await its termination. See generally Quality Screen Process Corp. v. Collins, 153 Ga. App. 448
, 450 (265 SE2d 358
) (1980), and cases cited therein.