Opinion
40456.
DECIDED FEBRUARY 11, 1964. REHEARING DENIED FEBRUARY 26, 1964.
Malicious use of process. Tift Superior Court. Before Judge Gray.
G. Gerald Kunes, for plaintiff in error.
Reinhardt Ireland, Glenn Whitley, contra.
It was error for the court to grant defendant's motion for a summary judgment after overruling the defendant's general demurrer to the petition seeking damages for the malicious use of legal process when the facts stated in the petition and facts shown on the hearing on the motion for summary judgment showed the same facts and where the ruling on the general demurrer was unreversed, unmodified and unexcepted to. The ruling on demurrer became the law of the case which, while erroneous, is binding on the parties.
DECIDED FEBRUARY 11, 1964 — REHEARING DENIED FEBRUARY 26, 1964.
Perry Hester brought suit against Dixie Finance Corporation to recover general and punitive damages for an alleged malicious use of legal process. The petition alleged substantially as follows: That on March 29, 1960, defendant loaned plaintiff $450 on a note, payable in 18 monthly installments of $25, due on the first day of each month beginning May 1, 1960, and that at this time plaintiff received $207.96 in cash as proceeds out of said note; that the defendant charged the plaintiff $27 for an accident and sickness disability insurance policy; that the defendant was the beneficiary creditor of said policy and filed all claims and collected all moneys in connection therewith and applied said moneys as they wished to the plaintiff's account; that on October 26, 1960, plaintiff paid the defendant $26.25 for the payment due October 1, 1960, leaving a balance due of $1.90, plus 12 $25 payments, or a total of $301.90; that on October 10, 1960, plaintiff sustained an accidental bodily injury as defined by the insurance policy which wholly and continuously disabled him for the balance of the term of the policy, which expired on September 29, 1961, and that for the 21 days in October, 1960, defendant collected the sum of $19.82, which, after deducting the $1.90 balance owed October 26, 1960, overpaid defendant in the sum of $17.92 for the month of October, 1960; that, thereafter, on December 29, 1960, defendant, by its agent B. Smith, extracted another payment of $26.25 from the plaintiff, to which it was not entitled, making a total overpayment on the note by the plaintiff of $44.17; that the defendant collected the monthly payments due on the note through the proceeds of the policy from the time the plaintiff became disabled up to and through the final payment on the note that was due; that on January 11, 1962, the defendant maliciously and without any reasonable and probable cause, filed suit against the plaintiff in the Justice Court, 1314 General Militia District, obtaining a judgment of $52.50 for an alleged balance due on the note and had a levy made upon the plaintiff's automobile; that immediately prior to this levy, the plaintiff, through his counsel, advised Ronald E. Wiggins, Manager in charge of the defendant's Tifton office, that this levy should not be made because the plaintiff's insurance coverage had extinguished the debt and that they would make the levy at their own risk; that said Wiggins replied that he was going to proceed with the levy, that he knew what he was doing, that all he wanted was the money the plaintiff owed the defendant and that he was going to get it; that on March 10, 1962, defendant released the levy, renounced the judgment in his favor and attempted to satisfy the execution entered on the general execution docket and the justice of the peace who had granted the judgment vacated it and set it aside; that the defendant knew, or in the exercise of ordinary care should have known, that on January 11, 1962, plaintiff was not indebted to it in any amount; that said suit was brought solely for the purpose of further harassment and intimidating the plaintiff in an effort to extract additional money from him, to which it was not entitled; that defendant brought all of this litigation against him maliciously, fraudulently, and without any reasonable or probable cause; that said litigation was finally terminated in favor of the plaintiff; that plaintiff's property was seized, causing plaintiff humiliation, embarrassment, mortification, and damage to his good name and credit reputation. The defendant filed a general demurrer to the petition which was overruled. The defendant filed a motion for summary judgment, supported by the sworn affidavits of its agent, Wiggins; the justice of the peace, Jerry Waters; J. H. Sledge, the constable who had made the levy, the deposition of the plaintiff and the certified copy of the record of the proceedings in the justice court. The court granted the defendant's motion, to which judgment the plaintiff excepts.
"It is essential that an action for damages for malicious use of civil process show (1) malice, (2) want of probable cause, and (3) termination of the proceedings in a judgment in favor of the defendant." (Emphasis supplied.) Georgia Veneer c. Co. v. Florida Nat. Bank, 198 Ga. 591 (2) ( 32 S.E.2d 465). See also cases annotated under Code § 105-801, catchword "Process." We construe the judgment of the trial court overruling the defendant's general demurrer to the petition as a ruling that the effect of the order of the justice of the peace, which purported to set aside upon the motion of the finance corporation, the judgment rendered in the corporation's favor, was a termination of the proceedings in a judgment in favor of defendant Hester. The petition and the affidavits in support of the motion for a summary judgment both show the same thing, namely: that the judgment of the justice's court was a valid judgment in favor of the plaintiff corporation, which must have remained valid until set aside for fraud, accident, mistake or other cause as provided by law. Creswell v. Bryant Hardware Co., 166 Ga. 228 (1) ( 142 S.E. 885); Code § 37-219. A levy based upon such a valid judgment would not give rise to a cause of action for malicious use of process. Under Georgia law, the order of the justice of the peace purporting to set aside the judgment was null and void because in this State a justice of the peace has no authority to set aside a judgment rendered by him. Dalton City Co. v. Haddock, 54 Ga. 584 (1); Doughty, Pearson Co. v. Walker, 54 Ga. 595 (1); Fontaine v. Bergen, 55 Ga. 410 (1, 2); Levadas v. Beach, 117 Ga. 178 ( 43 S.E. 418); Bacon Sons v. Jones, 117 Ga. 497 ( 43 S.E. 689); Gregory v. Citizens Nat. Bank of Montezuma, 41 Ga. App. 400 ( 153 SE 90) and cases cited; Mills v. Bell, 136 Ga. 687 ( 71 S.E. 1120); Edwards Daniel v. Edwards, 163 Ga. 825 (3) ( 137 S.E. 244); Ward v. Montgomery Ward Co., 181 Ga. 228, 229 ( 181 S.E. 664). But even if the justice's court had authority to set aside the judgment the finance company would not be guilty of a malicious use of process when it proceeded on the process before the effort to set it aside and did nothing after it was purportedly set aside. It follows that the petition did not set forth a cause of action because it showed on its face that the suit against the plaintiff terminated against him rather than in his favor and the ruling overruling the general demurrer to the petition was error.
However, the defendant in error (the defendant below) did not except to the overruling of its general demurrer, either by direct bill of exceptions after the ruling thereon or by cross bill on this appeal. See Code Ann. § 6-901, as amended (Ga. L. 1957, pp. 224, 232). "A judgment overruling a general demurrer to a petition, unless excepted to and reversed, is an adjudication that the petition sets forth a cause of action; and the court may not by indirection deprive the plaintiff of the estoppel he is entitled to urge as against the defendant." Turner v. Willingham, 148 Ga. 274 (2) ( 96 S.E. 565) and cit.; Herb v. Wolfe, 75 Ga. App. 20 (1) ( 41 S.E.2d 817); Courtney v. State Farm Mut. Auto. Ins. Co., 81 Ga. App. 616 (1) ( 59 S.E.2d 556); McDougald v. Johnson, 104 Ga. App. 233, 234 ( 121 S.E.2d 417), and cases cited. Accordingly, the judgment of the court overruling the defendant's general demurrer, unexcepted to and unreversed, became the law of the case, establishing that a cause of action for malicious use of legal process was set out against the defendant. The court therefore erred in its subsequent judgment granting the defendant's motion for a summary judgment, since the issues raised thereby were the same ones which were resolved in favor of the plaintiff by the overruling of the general demurrer.
Judgment reversed. Frankum and Pannell, JJ., concur.