
    13779.
    Stoufer v. Missenheimer.
    Decided November 14, 1922.
    Action for damages; from Fulton superior court — Judge George L. Bell. June 2, 1922.
    
      Morris Macks, H. W. B elf or, for plaintiff.
    
      McGallum & Sims, for appellant.
   Broyles, O. J.

1. There is no merit in the motion to dismiss the bill of . exceptions.

2. In a suit for damages based upon a malicious use of legal process, it must appear that the previous litigation has finally terminated against the plaintiff therein. McElreath v. Gross, 23 Ga. App. 287 (1) (98 S. E. 190).

3. In a suit where a judgment has been obtainedf and where the case has'been appealed to the reviewing court and is pending therein, the mere suing out of a garnishment based upon the judgment is not a malicious abuse of legal process. Miller v. Gay, 98 Ga. 536 (25 S. E. 577); Newman v. Coker, 150 Ga. 665 (105 S. E. 162).

4. Under the above rulings and the facts of the instant case the court did not err in dismissing the petition upon general demurrer.

Judgment affirmed.

Lüke and Bloodworth, J.J., concur.  