1. The counterclaim based upon fraudulent misrepresentations fails to set out any claim for malicious use of process.
2. Damages for malicious use and abuse of process in this civil action cannot be recovered by the counterclaim in the trial of the same action. Fender v. Ramsey & Phillips, 131 Ga. 440
, 442 (62 SE 527
); Ellis v. Millen Hotel Co., 192 Ga. 66
, 69 (14 SE2d 565
); Wallace v. Jones, 101 Ga. App. 563 (114 SE2d 436)
3. Only by Code 20-1404 can expenses of litigation (attorney's fees) be sought by the plaintiff not the defendant. Busbee v. Sellers, 71 Ga. App. 26, 28 (29 SE2d 710).
4. Neither of the only two elements of damage sought and awarded in the counterclaim (punitive damages and attorney's fees) is recoverable unless there is a right under the pleadings and evidence to recover general, nominal, or special damages. See Love v. National Liberty Ins. Co., 157 Ga. 259 (121 SE 648)
; Beverly v. Observer Publishing Co., 88 Ga. App. 490 (77 SE2d 80)
; Gartrell v. Afro-American Life Ins. Co., 88 Ga. App. 806 (78 SE2d 92)
; Bigelow-Sanford Carpet Co. v. Goodroe, 98 Ga. App. 394
(5, 6) (106 SE2d 45
). Accordingly, the trial court did not err in its judgment vacating the verdict (and, by necessary implication, the judgment based thereon) in favor of the counterclaimant and in thereafter dismissing the counterclaim.
Wonder Seal Co. brought an action against Mrs. L. W. Terry to recover principal, interest and attorney's fees allegedly owed it under an attached conditional sale contract. The defendant filed an answer and counterclaim in effect, denying any indebtedness to the plaintiff and alleging that the sale of the stainless steel cookware, which was the consideration of the contract sued upon, was procured through the fraud of the plaintiff's agents in misrepresenting that the defendant's continued use of her own aluminum cookware would cause cancer; that immediately upon his discovery of the alleged fraud, the defendant stopped making payments on the account and the plaintiff repossessed substantially all of the merchandise before the defendant had an opportunity to tender it to the plaintiff; that the plaintiff then had possession of the merchandise sold to the defendant, plus the defendant's original aluminum cookware (which it had taken at the time of the alleged fraudulent procurement of the contract), plus the approximately $49 already paid on the account by the defendant; that the plaintiff's alleged actions constituted malicious use of process, for which punitive damages were sought. The defendant prayed that there be made parties-defendant to her counterclaim one Roy C. King, an agent of the plaintiffs, the two saleswomen who procured the contract and three incorporators of the plaintiff company. The counterclaim prayed for punitive damages and attorney's fees.
The trial court entered a pre-trial order as follows: "This is a suit on contract, copy of which is attached to plaintiff's petition. Defendant's answer denies that defendant is liable under the contract and defendant by way of cross action [counterclaim] seeks damages against the plaintiff based upon alleged fraudulent misrepresentations of plaintiff's agents. There being no appearance of counsel for either party, it is ordered that said case be determined to be ready for trial, and issues will be submitted to the jury as made by the pleadings." Thereafter, in open court, the said Roy C. King being present was made a party defendant as to the counterclaim.
After both sides announced ready for trial, the plaintiff company failed to submit evidence, whereupon its action was dismissed by the court. The trial of the counterclaim resulted in a verdict and judgment in favor of counterclaimant, Mrs. Terry, against boils counterclaim defendants for $2,500 punitive damages and $500 attorney's fees.
The counterclaim defendants moved to set aside the verdict on the grounds that the counterclaim and the verdict were fatally defective because there was no demand for or award of actual damages. The court sustained the motion and vacated the verdict in favor of Mrs. Terry. Thereafter Wonder Seal Co. moved to dismiss the counterclaim, which motion was sustained. Mrs. Terry appeals from the orders of the trial court vacating the verdict in her favor in her counterclaim and dismissing the counterclaim.