Opinion
66452.
DECIDED SEPTEMBER 13, 1983.
Action for damages. Dougherty Superior Court. Before Judge Farkas.
G. Gerald Kunes, for appellant.
Donald E. Strickland, for appellee.
The defendant, Associates Financial Services, obtained a judgment against the plaintiff for approximately $1,600 in November of 1975. In January of 1978, the defendant agreed with the plaintiff to settle the judgment for $1,181; however, in March of 1978, the defendant levied a garnishment on a bank account belonging to the plaintiff to collect the full amount of the judgment. The plaintiff subsequently brought this action for malicious abuse of process. This appeal is from the dismissal of the complaint for failure to state a claim upon which relief can be granted. Held:
1. Malicious abuse of process involves the misapplication of process to obtain an object or result not intended by the law. Dugas v. Darden, 65 Ga. App. 394 ( 15 S.E.2d 901) (1941). It is clear from the complaint in this case that the garnishment was filed for the purpose of collecting a judgment, and it can by no means be said that this constitutes a misapplication of process.
2. The complaint can, however, be construed to allege a claim for damages for breach of a contract not to enforce a judgment (see OCGA § 9-13-74 (Code Ann. § 39-604)). It follows that the trial court erred in granting the defendant's motion to dismiss. Tanner v. Plaza Sportswear, Inc., 136 Ga. App. 190 ( 221 S.E.2d 65) (1975).
Judgment reversed. Deen, P. J., and Carley, J., concur.