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DEEN, Judge.
Malicious prosecution. Greene Superior Court. Before Judge Carpenter.
1. To recover in a suit for malicious prosecution of a civil action, or malicious use of civil process, it must be shown that such process caused either an arrest of the person, seizure of his property or other special injury "over and beyond damages for humiliation and ridicule, or attorney fees and other expenses of defending the litigation. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 108 (70 SE2d 734)." Oliver v. Aetna Ins. Co., 102 Ga. App. 89 (1) (115 SE2d 647); Swain v. Amer. Sur. Co. of N. Y., 47 Ga. App. 501 (171 SE 217). The term "special damage" does not include that which necessarily results in all suits prosecuted to recover in like causes of action. Price v. Fidelity Trust Co., 74 Ga. App. 836 (41 SE2d 614); Crawford v. Theo, 112 Ga. App. 83 (143 SE2d 750).
2. Where one who, having no right to the possession of the property in question, takes out a bail trover proceeding against a defendant who has pledged the property as security, and the action terminates in favor of the latter, this and other circumstances may show that the process was instituted without probable cause. Underwood Elliott Fisher Co. v. Evans, 53 Ga. App. 673 (1) (186 SE 858).
"In such a proceeding [action for malicious use of legal process], while it is necessary that it shall appear that the previous litigation [garnishment] has finally terminated against the plaintiff therein, this fact, while generally sufficient to indicate where the preponderance of the evidence lies, furnishes no proof or presumption that the former proceeding was instituted maliciously or without probable cause (Farrar Lumber Co. v. Hogan, 25 Ga. App. 597 (103 SE 863)); and this is the gist of the action." (Emphasis supplied). Hallman v. Ozburn, 38 Ga. App. 514 (144 SE 344). Accord: (distress warrant) Johns v. Gibson, 60 Ga. App. 585, 589 (4 SE2d 480); (dispossessory warrant) Crawford v. Theo, 112 Ga. App. 83, supra; (dispossessory warrant) Fletcher v. Georgia Power Co., 117 Ga. App. 696 (161 SE2d 369); (involuntary bankruptcy proceedings) Odom v. Attaway, 41 Ga. App. 51 (152 SE 148). In Farrar Lumber Co. v. Hogan, supra, the former action was for an injunction, a restraining order having been entered against the defendant. There was an injunction too, in Randolph v. Merchants &c. Loan Co., 58 Ga. App. 566 (199 SE 549), where it was held that a reversal of the grant of the injunctive relief in the appellate court would not furnish the proof of presumption of malice and want of probable cause. And see Smith v. CIT Corp., 69 Ga. App. 516 (26 SE2d 146), where a bail trover action for an automobile was instituted by CIT and defended on the ground that there was no past due indebtedness under the security instrument when the trover was instituted. On the first trial there was a nonsuit, and on a second there was a verdict for the defendant. Thereafter, Smith, defendant in the trover action, sued CIT for malicious use of process and on trial of it a nonsuit was granted. We affirmed the evidence failed to disclose that CIT had not had probable cause for taking out the trover action under an insecurity clause in the contract. The trover action had terminated favorably to Smith, but that was not enough.
3. "Any restraint, however slight, upon another's liberty to come and go as he pleases constitutes an arrest." Turney v. Rhodes, 42 Ga. App. 104 (1) (155 SE 112). We agree with the trial court's statement that the plaintiff's affidavit, stating that upon service of the bail trover action upon him "he was in fact arrested but was allowed by the sheriff to make surety bond in lieu of being carried to jail" is an allegation of fact and creates a jury issue as to whether the plaintiff's liberty was restrained so as to constitute an arrest.
4. The facts giving rise to this litigation appear in Hogan v. Maxey, 121 Ga. App. 490 (174 SE2d 208). Briefly, the appellant Farmers Bank of Union Point held Maxey's note for money borrowed by him and as security a bill of sale to secure debt to certain restaurant equipment. Nine days after the note was paid (by a surety) and therefore at a time when it had no right of possession whatsoever in the property the bank caused a bail trover to be served on him. Maxey avers that he was arrested, but that he was allowed to and did put up security in lieu of being taken to jail (all this, of course, prior to the ruling in Hall v. Stone, 229 Ga. 96 (189 SE2d 403) that the provisions of Code Ch. 107-2 relating to bail in trover proceedings are unconstitutional, and the similar holding in Fuentes v. Shevin, 407 U. S. 67 (92 SC 1983, 32 LE2d 556)). The fact that somewhat later Maxey in fact attempted to leave the property at the bank and the bank refused to accept it no more establishes as a matter of law that Maxey admitted title in the bank than it does that the bank admitted title in Maxey. The trial court properly denied the motion to dismiss for failure to state a claim and the defendant bank's motion for summary judgment.
John G. Wright, Walton Hardin, for appellee.
Weldon C. Boyd, for appellant.
Friday May 22 14:36 EDT

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