6 Ga. App. 72 | Ga. Ct. App. | 1909
This is a suit to recover damages for malicious prosecution, and comes before us on error assigned to the judgment of the trial court in sustaining a demurrer and dismissing the petition. The suit is predicated on the arrest and prosecution of the plaintiff on a warrant issued by a justice of the peace, based on an affidavit therefor, and on an accusation in the city court, charging that the plaintiff, in the county of Eloyd, “on the - day of - in the year 1904,” did “commit the offense of selling or otherwise disposing of mortgaged property.” The petition, by amendment, further alleges, that the plaintiff in the present case was arrested on this warrant and confined in the common jail of the county; that he thereafter waived commitment trial or preliminary investigation by the justice, and was bound over to the city court under a $250 bond, and that subsequently an accusation was filed against him in the city court, “charging that petitioner did dispose of mortgaged property.”
The view which this court takes of one controlling question in the case renders a decision on the others presented unnecessary. This controlling question is whether there was any criminal prosecution on which a suit for damages for malicious prosecution could be predicated. Section 3843 of the Civil Code gives a right