1. The oral motion to dismiss the demurrers was properly overruled.
2. The court erred in sustaining the general demurrer as to count 1 of the petition, which alleged a cause of action for malicious use of civil process.
3. Count 2, alleging use of the statutory dispossessory-warrant procedure by the landlord to eject the tenant, did not state a cause of action for malicious abuse of legal process; therefore the court did not err in sustaining the general demurrer thereto.
Wheeler B. Crawford brought an action against Charles Theo in two counts for malicious use of civil process and for malicious abuse of legal process, respectively. Count 1 of the petition alleges substantially as follows: The plaintiff occupied certain described unimproved real property beginning on or about January 1, 1964, as a tenant of the defendant under a written rental contract, executed in December 1963, for the term of January 1, 1964, through December 31, 1964. In compliance with said contract, the plaintiff paid the rent for January and December 1964 in advance, then paid each month's rent on or before the first of the month, up to and including the July payment, which the defendant accepted and retained. On July 7, 1964, the defendant filed a dispossessory warrant against the plaintiff in the Civil and Criminal Court of DeKalb County, to which the plaintiff filed a counter affidavit accompanied by a bond. On August 12, 1964, the defendant dismissed the warrant. The filing of said warrant was done maliciously and without probable cause in that, at the time of filing, the plaintiff had made every payment on or before the due date and had paid in advance the rent for July and December. The defendant attempted to dispossess the plaintiff because he had already made arrangements to rent the property to another tenant and desired to eject the plaintiff for this purpose. The dispossessory-warrant proceedings terminated favorably to plaintiff by the defendant's dismissal of same. In addition to general damages, the petition sought special damages for the following: Attorney's fees, cost of giving bond, and loss of time from work in defending the dispossessory-warrant proceeding; embarrassment, humiliation, worry, and sleepless nights resulting in loss of time from work; expenses of seeking another location for his business; attorney's fees for the prosecution of the present action; loss of one-fourth of the value of improvements made by the plaintiff to the property because of having been compelled to vacate the premises which he did on October 1, 1964, three months prior to the expiration of the twelve months lease period.
Count 2, which adopts by reference virtually all of the allegations and prayers of count 1, alleges additionally that the defendant committed a malicious abuse of process by having the process issued for the illegal purpose of ejecting the plaintiff from the defendant's property, which the plaintiff occupied under a valid lease with which the plaintiff was complying, so that the defendant could place Public Finance Company in possession.
The defendant filed an answer, cross bill and general and special demurrers to the petition. The court overruled the plaintiff's oral motion to dismiss the demurrers and sustained the general demurrer, to which judgment the plaintiff excepts.
1. The general demurrer, stating that "the petition as a whole, nor do any of its separate parts, paragraphs or counts set forth a cause of action against the defendant," and the special demurrers, followed by the prayer that the demurrers be inquired into by the court and that the defendant have judgment accordingly, were properly held not to be subject to the plaintiff's oral motion to dismiss on the grounds that there were no prayers to sustain the demurrers or to dismiss the petition.
2. "[I]n an action for damages for the malicious use of civil process three essential elements must appear, to wit: (1) Malice. (2) Want of probable cause. (3) The proceeding complained of has terminated in favor of the defendants before an action for damages is instituted." Georgia Veneer &c. Co. v. Florida Nat. Bank, 198 Ga. 591, 609 (2) (32 SE2d 465), and cit. The petition sufficiently alleges want of probable cause by the allegations that the plaintiff was occupying the rented property in compliance with a written contract for an unexpired term, with his rental payments being not only current but paid in advance, and that the defendant voluntarily dismissed the warrant. Malice is alleged and, further, it may be inferred from want of probable cause. Code 105-804; Hearn v. Batchelor, 47 Ga. App. 213, 214 (1) (170 SE 203), and cit.
Termination of the dispossessory-warrant proceedings favorably to the plaintiff in error is specifically alleged to have occurred by reason of the voluntary abandonment of the case by the party who instituted the proceedings. See Waters v. Winn, 142 Ga. 138
, 140 (2) (82 SE 537
, LRA 1915A 601, AC 1915D 1248); Slater v. Kimbro, 91 Ga. 217
(18 SE 296
, 44 ASR 19). Those cases which hold that the warrant must be dismissed by judicial action and not by the parties involved are those dealing with malicious prosecution of criminal, rather than civil process, such as in the case at bar. Smith v. Craft, 99 Ga. App. 19
, 21 (1) (107 SE2d 255
); Smith v. Embry, 103 Ga. App. 375
(4, 5) (119 SE2d 45
). Although headnote 2 in the Georgia Veneer case, supra, stated the third element to be "termination of the proceedings in a judgment in favor of the defendant" (Emphasis supplied), which statement was quoted in the case of Hester v. Dixie Finance Corp., 109 Ga. App. 204
, 206 (135 SE2d 504
), examination of the cases cited on p. 609 of the Georgia Veneer case, supra, as well as other cases annotated under Code 105-801, catchword "Process," reveals that a judgment is not a prerequisite of the termination.
A further limitation has been placed by the appellate courts of our State upon this type of action, to wit: No damages are recoverable for a malicious use of civil process where the defendant's person or property is not seized unless he sustains some special damage or injury other than such as necessarily results in all suits prosecuted to recover in like causes of action. Mitchell v. Southwestern R., 75 Ga. 398 (3)
; Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 SE2d 76)
, and cit. This rule has been followed and perpetuated in this State (see Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98
, 108 (6, b) (70 SE2d 734
)) in spite of the fact that it is contrary to the weight of authority in this country. Josey v. Grayson-Robinson, Inc., 90 Ga. App. 820 (84 SE2d 615)
and citations; 7 Mercer Law Review 196. Since the petition in the case at bar does not allege that either the plaintiff's person or his property was seized, it is therefore necessary, under the above-cited rule, to ascertain whether such special damage is alleged as will sustain a recovery in such an action. The Supreme Court, in Dixie Broadcasting Corp. v. Rivers, p. 108, supra, after citing authorities supporting its holding that attorney's fees and other expense in defending the suit were not such special damages, indicated that the holding that such damages were recoverable in the case of Slater v. Kimbro, 91 Ga. 217
, supra, which, like the case at bar, also involved a dispossessory warrant, was not inconsistent with their ruling in the Dixie case, since in the Slater case these expenses were necessary to avoid eviction of the tenant from the premises. Although the case of Price v. Fidelity Trust Co., 74 Ga. App. 836 (41 SE2d 614)
, which held that the attorney's fees, costs of giving bond, loss of time, etc., in defending dispossessory-warrant proceedings were not recoverable special damages, was not expressly overruled by the Dixie case, supra, or any other cases, it must yield to and be considered impliedly overruled by that subsequent Supreme Court case to the extent that the two cases are in conflict, even though the Supreme Court denied the application for certiorari in the Price case. Using this criterion in the present case, then, for the purpose of ruling on the general demurrer, at least the expenses of attorney's fees and of giving bond, incurred in the filing of the counter affidavit, were recoverable special damages, since, although the warrant was never executed, these expenses were necessary to arrest the proceedings and to avoid eviction pending their outcome. The remainder of the special damages alleged need not be passed on, since they are the subjects of attack by the special demurrers, which were not ruled on by the trial court.
3. Use of the dispossessory-warrant procedure provided by statute (Code 61-301 et seq.) by a landlord to obtain possession of his premises is not such a perversion or unintended use of the process as amounts to a malicious abuse of legal process, the warrant being used for the very purpose it was intended by the law to accomplish, dispossession by ejecting the tenant; such proceeding may amount to a malicious use of legal process if the facts so warrant. Clement v. Orr, 4 Ga. App. 117
, 120 (60 SE 1017
); Porter v. Johnson, 96 Ga. 145
, 149 (23 SE 123
); McKellar v. Moynihan, 28 Ga. App. 431 (111 SE 580)
; Gaines v. Pirkle, 58 Ga. App. 546 (199 SE 317)
, and cases cited; Dantley v. Burge, 88 Ga. App. 478 (77 SE2d 107)
. The court therefore did not err in sustaining the general demurrer as to count 2.
The court erred in its judgment sustaining the general demurrer as to count 1 of the petition and in dismissing the petition.
ON MOTION FOR REHEARING.
Counsel for the defendant in error contends that the general rule as to special injury in suits for malicious use of civil process, as stated in Dixie Broadcasting Corp. v. Rivers, supra, applies to count 1 of the present action and that the Supreme Court's ruling in the Slater case, supra, was based upon its finding that the plaintiff's loss of boarders from her boarding house, from which she was threatened to be expelled by the dispossessory-warrant proceedings, constituted a special injury, whereas no such special injury was here alleged. After deciding that loss of boarders was special damage, the Supreme Court, in the Slater case, headnote 2, expressly held: "So too were trouble and expense, including counsel fees, incurred by the tenant in giving bond and security to prevent summary expulsion from the premises by virtue of the malicious process." This latter injury is the one on which the Supreme Court, in Dixie Broadcasting Com. v. Rivers, noted the difference in the situation in the Slater case from those in the cases following the general rule. Both the cases of Swain v. American Surety Co., 47 Ga. App. 501 (171 SE 217) and Jacksonville Paper Co. v. Owen, 193 Ga. 23, supra, relied on in Price v. Fidelity Trust Co., 74 Ga. App. 836, supra, involved situations other than dispossessory-warrant proceedings, and thus are not inconsistent with either the Slater or the Dixie Broadcasting Corp. case. Whether the Slater case can be reconciled with the fact that the threat of eviction is a necessary result in all dispossessory-warrant proceedings is immaterial since this ruling was made, whether rightly or wrongly, in the Slater case and recognized in the Dixie Broadcasting Corp. case, and, never having been overruled, it is binding on this court.