Furr v. Eddleman , 80 Ga. 660 ( 1888 )

Bleckley, Chief Justice.

It is difficult to determine from the declaration exactly what sort of an action this is. It resembles an action for suing out maliciously and without probable cause two writs, first, a distress warrant for rent, and then a process to remove the occupant of the premises as a tenant holding over. The declaration wants some of the proper averments to make this species of action; but it was probably amendable; and after verdict, there having no question arisen in the court below as to the sufficiency of the pleadings, we are not disposed to scrutinize the declaration further than is necessary to classify it the best we can; and we base our opinion of the case upon the evidence, without much regard to the pleadings. In so doing, we but follow the example of both court and counsel who participated in the trial.

The evidence warrants a verdict based on the character of action which I have indicated; and treating it as that sort of action, the amount of the verdict is small, considering the circumstances (all of them) which appear in evidence. We need not scrutinize the charge of the court complained of. Perhaps it was not a correct charge, adapted to the facts of the case; but if not, it led to no unjust result as against the plaintiffs in error, the defendants below. The charge was, in substance, that the measure of damages for the loss of the unexpired term would be the net profits that the tenant might have made during so much of the term as he was deprived of by the abuse of process. We do not endorse this as a correct measure. But if the damages were measured properly, they would be more rather than less than the jury found ; and so we uphold the judgment of the court denying a new trial) .putting, as I have stated, our decision of the matter upon the evidence. If the case were sent back, the recovery could not rightfully be reduced in any view that we can possibly take of the evidence before us.

Judgment affirmed.