Miles v. Sears, Roebuck and Company

14 S.E.2d 613 | Ga. Ct. App. | 1941

The court did not err in sustaining the general demurrer to the petition as amended, and in dismissing the action.

DECIDED MAY 8, 1941. The petition sought damages for malicious prosecution, alleging that the defendant maliciously and without probable cause prosecuted the plaintiff for larceny and that the trial resulted in an acquittal. The court sustained the second ground of demurrer, which was that the petition failed to allege facts which showed that the plaintiff was prosecuted without probable cause, and that no facts were alleged which showed malice. Fifteen days were allowed in which the plaintiff should amend, and in default of amendment the action stood dismissed. An amendment was filed which did not add anything material to the original petition. As to malice and probable cause, it simply repeated the general conclusion stated in the original petition. By amending the plaintiff acquiesced in the first ruling on the demurrer; and since the amendment did not cure the alleged defect pointed out by the demurrer, the court did not err in sustaining the general demurrer to the amended petition, and in dismissing the action. Elijah A. Brown Co. v. Wilson, 191 Ga. 750 (13 S.E.2d, 779).

Judgment affirmed. Stephens, P. J., and Felton, J., concur.