129 Ga. 532 | Ga. | 1907
On April 24, 1906, Andrew Gordon filed a petition against William J. West, the substance whereof so far as material, briefly stated,- was: On January 23, 1903, defendant brought against plaintiff an action of bail-trover, and on the same -date the Southern Banking and Trust Company and M. N. West & Company each instituted a similar action against the plaintiff, the three suits being for personalty of the same character. The bail process in each case was founded upon an affidavit therefor made by the defendant. On January 28, 1903, the plaintiff was arrested and lodged in jail under such bail proceedings. On the day of his arrest he filed petitions, in accordance with the statute, for his discharge; but a Hearing thereon was not had, by reason of postponements at the instance of counsel for defendant in the present ease, until February 4, 1903, plaintiff having been confined in jail in the meantime, when the court granted, in each case, an order as follows: “Upon the call of this case for a hearing of the motion to discharge from custody, without trying same, and by consent of plaintiff, the defendant is discharged from jail -on his own recognizance conditioned as required by statute.” On April 28, 1904, the three actions of trover were tried, and a money verdict was rendered in each in favor of the plaintiff therein. In the petition in the present case, damages were laid for lost time, the disgrace and humiliation and ruined clothing, all caused by plaintiff’s imprisonment, and for attorney’s fees. The petition was demurred to generally and specially. The court granted a general order sustaining the demurrers and dismissing the petition; to which ruling the plaintiff excepted. Pending the case in this court, the defendant in -error died, and the executors of his will, A» S. West and E. A. Heard, were duly made parties defendant in error. On account of the very loose and general allegations of the petition, it is rather difficult to decide whether the cause
In the case now before the court, the judicial determination of the suits in trover, to which the bail proceedings were merely ancillary, though adverse to the present plaintiff, could not .be proof of probable cause for the suing out and prosecuting the bail proceedings against him; for he would not, on the trial of the trover cases, have his day in court upon that question, as it would not be necessarily involved, the issue there being whether the defendant had converted the personalty of the plaintiff sued for, prior to the institution of the action and within the period of the statute of limitations, and a finding that he had would throw no light on the question as to whether there was probable cause for the bail proceedings. Under the statute (Civil Code, §4604), the plaintiff in an action of trover, or his attorney, etc., in order to have bail process issue, must make affidavit that the property sued for is in the possession, custody, or control of the defendant, and that he has reason to apprehend that it has been or will be eloigned or made away with, or will not be forthcoming to answer the judgment, etc., that shall be made in the case. And under §4608, the only questions raised by the petition of the defendant in the bail-trover proceeding for his discharge from imprisonment are, can he give the security required by law, or produce the property, and if not, are the reasons for the non-production satisfactory; and if upon the hearing these questions are decided in his favor, he shall be discharged upon his oto recognizance, conditioned for his appearance to answer the suit. We think it clear, from what has been said, that if the plaintiff had a cause of action for the malicious use of the bail proceedings, it accrued upon
Judgment affirmed.