Savannah morning news. [volume] (Savannah) 1868-1887, 1882-01-20
ImPoRTANT pKCIsEoN.
Henry Jzehter We. BOehm. Bend
helm q Co.

MGAA1A - @Ns
We present below s certified copy Of the
opinion Of the Supreme Court Of the State
of Georgia, as matter of unusual interest
to our mercantile community, and citizens
generally. The case has been hotlY con-
tested at every point and presented issues
which the Supreme Court has taken more
than the usual time to consider; and which,
as viii be seen, have been fully and clearly
decided and determined:
CRAWFORD. j., delivering the opinion.
On the 21st dav Of February, 1877, Henry
Juehter gave to Boehm, Bendheim 3 20.
four promissorY notes for $3.50 each, due al
three, six, nine and twelve months, secured
bv mortgage on bis stock Of goods. a paper
bearing date February . 1877, was signed
BY Boebm, Bendheim 6 Co ststing tost II
Juehter could not meet his first note they
would renew 1t for a year, provided the
other three notes were met at mafurlty. On
the 18th day Of January, 1873. Boehm,
Bendheim Il Co. foreclosed their mortgage
for the first note, which, SIS alleged, was
overdue, and for the last which was 70 come
due, with prayer that enough OF the sur
plus proceeds be preserved for the payment
Of the latter when due; and upon
said foreclosure S f. Is. was issued
aud q levy made upon the goods
mortgaged. Ga the 23i day OF January,
1878, to this f. IA. Juchter filed two atfids-
vits-one of illegality, the other alleging
that from his poverty he was unable 10 give
security to replevy the property. The
affidavit of illegslity wss returned to the
proper court, and the o'her was the basis OF
a petition by plaintiffs in f. fa. to the
Judge for an order to sell the property,
Al nd
DAYS notice, 1t was sold. On the same day
Of the levy Of the mortgage 4. ia. Boehm,
Bendheim & Co. sued out sn attachments
against Juchter for the sum Of $67 10. due
By open account, upon the ground that he
was about to remove beyond the I'm
its of Chatham county. Upon levy
being made Juchter fled sn affidavit,
reversing the ground upon which the
attachment was issued, and when the same
was heard by the court it was sustained and
the attachment dismissed. Upon the trial
Of the issues formed By the affidavit OF He
gslify to the foreclosure OF the mortgage,
verdict and judgment were rendered in
favor Of Juehter, snd. upon appeal. af-
firmed by this court. These cases being
thus disposed of, Juchter brought this suit
agsinst Boehm, Beudheim & Go. for the
damages sustained By reason Of the matters
aforesaid. He sets forth the grievances
complained Of in five different counts
The first Is for the damages sustained
By reason OF the wrongful foreclosure
Of the mortgage before the debt was due.
The second is for the same cause OF Sc
tion, alleging make and want Of probable
cause.
The third Is for suing out the attachment
9Th malice and lcitb0llt probable eauss.
The fourth for the levy OF the common
Law execution founded on the attachment
suit, alleging malice and rant Of pTobab1s
oIIlSs.
The fifth for breaking and entering plain
tits close without lawful warrant or su-
thority when the mortgage f. Is. was levied
JanuzrY 19 b, 1878
To this suit the defendants filed the plea
Of not guilty.
Upon the issues thus made the parties
proceeded 10 trial, and after the evidence
for the plaintiff had been submitted, coun-
sci for defendants moved S nOnsuit, which,
after argument hsd. was granted By the
court, aud the plaintiff excepted.
During the progress OF the trial two other
exceptions were taken 10 the ruling OF the
court, which sre also made by this record,
and demand our consideration:
First. Counsel for the plaintiff offered TO
prove the vslue OF the good will OF the
business carried on when he was closed up
by showing the value Of the plaintiff s
stock In trade with the stand and
good viii to sny purchaser thereof.
which the court refused, and the plsintif
excepted.
Second. He further offered to prove the
attorneys fees paid by bin, or incurred by
bin, and stated in his declaration, which
the court also refused, and plaintiff again
excepted. Whether the nOnsuit was prop
erly granted depends upon the plaintiff 5
right TO recover under the several counts il
his declaration when considered il cOnnec-
ton with the evidence, provided the jury
should have believed It TO have been true.
L Is insisted by counsel for plaintiff in
error that he has good cause OF sction in
each count Of the declaration, snd that II
the evidence support either, then the non
suit as error.
On the other hand, it Is insisted that the
entire case is founded upon the alleged
wrongful use Of legal process, and that no
recovery can be had in such cases, without
proof Of malice and wsEt Of probable cause,
both concurTing.
l. This brings Us to consider whether the
first count, which contains no allegation OF
malice, or want OF probable cause, alleging
damage only from the wrongful foreclosure
OF the mortgs before the debt was due,
gives, IL true. the plaintiff right OF seton.
Il viii be seen, upon 81 examination, that
the authorities recognize 3 distinction be
tween cases brought TO recover damages for
malicious sbuse or use of legal process Eit6-
Cglt probable c1iASs and the mere abuse Of 3s3dl
process constituting the party simply 8 tres
pssser By such illegsl use. In the latter the
gravamen of the sctiOn Is the Trdaai, the
a5l.x: IN the former the males and the Kant
az Dro5a5S oGlLss. I American Leading
Cases b Ed. n = "a. snd authorities
cited 20 New York r go; Dicey on Par
ties to Action, N ?. "A; Chltty on Pleading,
vol l. Q. 12S; II Wendell, SOL
Ifs plaintiff in 4. Is. contracts with the
defendant not 70 enforce his Judgment
within ; given time, snd he leyies Il, the
defendant has bis seton Of trespsss, sud
uei. her mslice nor want OF probable cause
enter into the right OF he defendant II Z.
Is. to entiile him to recover. Ga. is.
In the csse OF Patterson vs. PhiniZY & Co E,
81 Ga 50, the defendants were sued for the
wrongful injury 10 the plaintiff for having
levied 81 execu' ion on his property without
suthorisy OF law, and wzs sustained, though
no mslice or want OF probable cause was
alleged. The sane principle Tss recOg-
nizsd il So Ibid Sol, snd in 60;h bid. sig.
That the right exists to sue in all cases
Of the nal Cons abuse, or use Of legal pro
cess, lritb0ll pT05I5s cIlESs, Is universally
recognized sud needs no citation OF suthor-
ity. TIE right 70 recover damages exists
equally in both classes Of cases; but vindIc-
tive OF primitive damages are allowed where
he SCI OF the defendant was in11eUced By
malicious motives, snd without probable
cause.
The second, third snd fourth counts Of
the plaintiff are BASED upon the malice OF
the defendants snd the want OF probable
cause.
8 TIE 9Th IS for the breaking snd enter
ing upon the close OF tie plaintiff sDd IN
lawfully holding the possession thereof
sgsinst the viii sud consent OF the plsiC-
TT for the space Of ten days Il is insisted
by the defendants thst having been entered
under legal process, it gave no right Of SC
ton except is was done nsliciously and
without probable cause. Aud II that re To-
n fhen the eTiderca shows Il 20 be in case