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Lawskills.com Georgia Caselaw
DAVIS v. PAULK.
37675.
TOWNSEND, Judge.
Malicious use of process. Tift Superior Court. Before Judge Gray. February 27, 1959.
v. Rivers, 209 Ga. 98 (6) (70 S. E. 2d 734), it was held that an action for malicious use of process where neither the person of the defendant was arrested nor his property attached, allegations relating to libelous averments injurious to reputation would not constitute such special damage as would support the prosecution of the action. It follows that in this case, a suit for malicious use of process in a civil case where the person of the defendant was not arrested or his property attached, and where the only damages sought are damages to the credit reputation of the plaintiff in this action, mental anguish which "impaired his earning capacity and caused him to suffer loss of sleep" and damage to the reputation of the plaintiff, his wife and family, no special damages are alleged such as would support the action, for which reason the trial court did not err in sustaining the general demurrer and dismissing the petition.
This case seems to be controlled in principle by the Rivers case, which was a decision by a divided bench, four justices enunciating the rule here expressed and three joining in a dissent insisting that the rule as set out by the majority was inapplicable to that case. Although by a divided bench, the decision of the Supreme Court in the Rivers case is nevertheless a binding precedent on this court, State Highway Dept. v. Wilson, 98 Ga. App. 619 (1) (106 S. E. 2d 544). The plaintiff in error, no doubt recognizing that this court is thus bound, first asked this court to certify the question, but thereafter withdrew his request, probably in view of Cargile v. State, 194 Ga. 20 (1) (20 S. E. 2d 416), which holds as follows: "The decisions of the Supreme Court shall bind the Court of Appeals as precedents, and the Court of Appeals is not authorized by the constitutional provision permitting that court to certify questions of law to the Supreme Court to request a review by the Supreme Court of a decision rendered by the Supreme Court. Such a request must be declined."
The trial court did not err in sustaining the general demurrer and dismissing the petition.
R. R. Forrester, Eberhardt, Franklin, Barham & Coleman, H. C. Eberhardt, contra.
G. Gerald Kunes, for plaintiff in error.
DECIDED MAY 18, 1959 -- REHEARING DENIED MAY 25, 1959.
Saturday May 23 00:37 EDT


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