This appeal contends the trial court erred in two respects: First, in sustaining a defense motion to dismiss plaintiffs complaint for failure to state a claim uрon which relief can be granted; second, in ruling the dismissal to be "with prejudice.”
Plaintiff sought to recover damages from defendant because of defendаnt having sworn out two warrants charging appellant "with the criminal offense of writing bad checks.” (R. 5). The complaint pleaded the details on which plaintiff sought damages. It recites that she was "told by the sheriff of Dougherty County that she would have to pay a $500 bond or settle up.” (R. 6). She avers payment was made of the amоunts of the two checks together with court costs because she was "in a state of emotional shock, and under great mental stress and duress becausе of the previously enumerated events.” (R. 7).
Thereafter, according to the pleading, she consulted an attorney who upon requesting the case be set for trial was informed this could not be done "as the case was 'settled.’ ” (R. 7).
1. Plaintiff contends the trial court erred in dismissing the complaint because the elеments necessary to establish a claim for either malicious arrest or malicious prosecution had been alleged. We disagree.
"Malicious prosecution differs from malicious arrest only in that in the former case there must be a carrying on of the prosecution.”
Smith v. Embry,
Prior to the enactment in 1966 of our Civil Practice Act our cоurt decided that a malicious prosecution petition alleging the criminal prosecution was settled was subject to demurrer because it failed to establish the requisite element of termination of the prosecution in favor of the accused.
Smith v. Otwell,
"A petition filed before the effective date of the Civil Practice Act (Ga. L. 1966, p. 609, as amended by Ga. L. 1967, p. 226; Code Ann. Title 81A) would be construed most strongly against the pleader when considered on generаl demurrer and in light of its omissions as well as its averments. [Cits.] If an inference unfavorable to the pleader could be fairly drawn from the facts alleged, that inferеnce would prevail in determining the rights of the parties. [Cits.] The Civil Practice Act changed these rules. As the Act is substantially identical with the Federal Rules of Civil Procеdure (28 U. S. C.), it is appropriate to resort to federal cases for its construction.
Holland v. Sanfax Corp.,
Thus, "the complaint, and other relief-сlaiming pleadings need not state with precision all elements that give rise to a legal basis for recovery as long as fair notice of the nature of the action is provided. However, the complaint must contain either direct allegations on every material point necessary to sustain a rеcovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inferenсe fairly may be drawn that evidence on these material points will be introduced at trial.” 5 Wright & Miller, Federal Practice and *16 Procedure: Civil § 1216, p. 120. Moreover, "When the claim alleged is a trаditionally disfavored 'cause of action,’ such as malicious prosecution, libel, and slander, the courts tend to construe the complaint by a somеwhat stricter standard and are more inclined to grant a Rule 12 Ob) (6) motion to dismiss.” Id. § 1357, p. 610.
Our Georgia case law is in agreement with the foregoing authority. Thus, in
Myers v. Clark,
Applying the foregoing principles to the case at bar, we find that the complaint fails to allege directly, or to raise a fair inference of, the successful termination of the prosecution. Accordingly, the liberality of our Civil Practice Act notwithstanding, plaintiffs complaint fails to state a claim, for either malicious arrest or malicious prosecution, upon which relief can be granted.
2. Plaintiff contends thаt the court erred in dismissing her complaint because a claim for abuse of criminal process was stated therein. This contention is without merit. Our courts have ruled that an action for abuse of criminal process, as distinguished from civil process, will not lie.
1
"In truth the form of action for the malicious use or abuse оf process is applicable only to civil process, while an action for malicious arrest or malicious prosecution is applicable only to criminal process.”
Grist v. White,
*17 3. In view of our ruling in Divisions 1 and 2 we hold the dismissal of plaintiffs complaint was in order. However, the trial court erred in dismissing the complаint "with prejudice.” These words should not have been added.
"A dismissal under Rule 12 (b) (6) generally is not on the merits and the court normally will give plaintiff leave to file an amеnded complaint. The federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that plаintiff be given every opportunity to cure a formal defect in his pleading. This is true even though the court doubts that plaintiff will be able to overcome the defects in his initial pleading. Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim. The better practicе is to allow at least one amendment regardless of how unpromising the initial pleading appears because except in unusual circumstances it is unlikely the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a сlaim.” Wright & Miller, Federal Practice and Procedure: Civil § 1357, p. 611.
Although plaintiff may not be able to amend her complaint to meet the fatal objection raised by the motion to dismiss, namely, failure to allege that the criminal proceedings terminated favorably to her, the trial court should not have made its dismissal "with prejudice.” In view of this entry which foreclosed plaintiffs right to institute another suit, we affirm the judgment of the trial court with the direction that these words be stricken and in lieu thereof plaintiff be granted leave to amend. See
Smith v. Embry,
Judgment affirmed with direction.
Notes
See the annotation in 27 ALR3d 1202, entitled "Use of criminal process to collect debt as abuse of process,” where the annotator states at page 1205 in footnote 13 that "The Georgia courts have held that under the rule *17 obtaining in the jurisdiction that an action for abuse of criminal process, as distinguished from civil process, will not lie, no recovery can be had for the use of criminal process for the purpose of collecting a private debt.”