Mаrilyn Fortes Garner brought suit against Heilig-Meyers Furniture Company, its collection manager, Ronald Kirby, and a collection agency employed by Heilig-Meyers, named in Garner’s complaint as John Doe Corporation d/b/a Mеtro Atlanta Investigations, alleging claims for false arrest, malicious prosecution, and defamation. Heilig-Meyers answered and filed a motion for summary judgment on Gamer’s claims for false arrest and malicious prosecution. *781 The motion was granted, 1 and Garner appeals. We conclude that the trial court correctly granted summary judgment in favor of HeiligMeyers and Kirby because they successfully pierced an essential element of Garner’s case by showing that the underlying prosecution was not terminated favorably to her. We therefore affirm the judgment.
The record shows that Gamer purchased furniture from HeiligMeyers under a retail installment agreement. Under that agreement, Garner was obligated to make 16 payments of $46, commencing on December 1, 1995, followed by a final payment оf $45.55. Garner admitted on her deposition that she made no payment between October 29,1996 and February 3,1997. Heilig-Meyers presented evidence that several demand letters were delivered to Gamer’s home in November 1996, аlthough Garner denied receiving or refusing any. In December 1996, after several unsuccessful attempts to contact Garner, Kirby sent an outside collector to Garner’s home. The collector reported to Kirby that Gаrner’s husband told him to “get away from the door.” In his affidavit, Kirby stated that he went to Garner’s home personally to reрossess the furniture, but no one answered the door. He also stated that other letters were taped to her door. On December 31, 1996, Kirby sent another letter to Garner, via express mail. The letter included a certified mаil receipt. Kirby testified that delivery was refused.
When no payment from Garner was forthcoming, the store manager directed Kirby to execute an application for an arrest warrant. Kirby did so on January 27, 1997. Based upon the affidavit and supporting documents, a warrant was issued by a magistrate for Garner’s arrest for violating OCGA § 16-8-4, theft by conversion. Garner was arrested at her home on February 4, 1997. Her husband delivered the balance owed to Heilig-Meyеrs that day. Garner was ordered released when the warrant was recalled and dismissed by the magistrate the next day, after Heilig-Meyers executed a document captioned “Recommendation of Dismissal.”
1. Garner cоrrectly concedes that because she was released before being brought before a committing court, an action lies only for false arrest and not for malicious prosecution.
If a criminal procеss is sued out without probable cause and an arrest is made under it, the remedy of the accused depends оn whether or not he is actually prosecuted under the warrant. If after the arrest the warrant is dismissed or *782 not follоwed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie.
(Citations and punctuation omitted.)
McCord v. Jones,
2. Either claim requires the clаimant to show “that the prior criminal proceeding, whatever its extent, had terminated in her favor.”
McCord,
supra;
Campbell v. Hyatt Regency,
In Grist v. White,14 Ga. App. 147 , 149 (1) (80 SE 519 ) (1914), this court said: While, under the Code, an arrest under process of law will give rise to an action for damages, if the arrest be mаde with malice and without probable cause, still there must have been a judicial ascertainment of the fact that the arrest was unlawful, evidenced by an order dismissing the warrant or vacating the prоcess under which the arrest was made.
(Citations and punctuation omitted; emphasis in original.)
Bennett v. Fine Jewelers &c.,
A prosecution may be terminated voluntarily by the party who instituted it. But the rule аppears to be well settled that when it is not voluntarily abandoned but terminated because of a compromise and agreement of the parties, no action will lie.
Laster v. Star Rental,
Judgment affirmed.
Notes
Heilig-Meyers and Kirby also filed a motion for summary judgment as to Garner’s claim against them for defamation, and this motion was later granted, as well. John Doe Corporation d/b/a Metro Atlanta Investigations is not a party to this appeal.