13 Ga. App. 737 | Ga. Ct. App. | 1913
This was an action for malicious prosecution. It was dismissed on general demurrer. In brief the petition set forth that Battle sold to Mimbs in January, 1910, a mare, representing to Mimbs that she was sound in every respect, and especially that her eyes were sound and perfect, although, as alleged, Battle well knew at the time that the mare’s eyes were weak and defective; that shortly after.his purchase the plaintiff discovered that the mare’s eyes were very defective and that she was going blind, and thereupon he tendered the mare to Battle and asked for the note
It is easily to be seen that this petition is demurrable in several respects. But the plaintiff offered an amendment which, we think, so amplified the statements as to the prosecution as to enable it to withstand the general demurrer. In the amendment it is stated .that the warrant under which the plaintiff was arrested was returned by the sheriff to the clerk of the city court of Moultrie, that it was docketed upon the criminal docket of that, court, and that from the entries upon the docket it appears that the ease was dismissed; the entry of the dismissal being in the handwriting of his honor J. D. McKenzie, who was judge of the city court of Moultrie in the years 1911-1912. From the amendment it further appears that the defendant appeared, in accordance with the obligation of his bond, at the November term, 1911, the February term, 1912, the May term, 1912, and the August term, 1912, of the city court, and finally, in October, 1912, in the open session of the city court, he was informed by the solicitor and the judge that there was nothing against him, and that the ease against him was dropped. It is further averred that after search in the offices of the clerk and the ''sheriff of the city court of Moultrie, neither the affidavit nor the warrant, nor the bond, can be found; and the contents of these
The chief insistence of counsel for the defendant, in support of the ruling sustaining the general demurrer, is that while the original petition attempted to set out the essential elements of an. action for malicious prosecution, the amendment transformed the action into a suit for malicious arrest. It is further contended, of' course, that the allegations of the original petition were insufficient to set forth any cause of action. We agree with the contention of counsel for the defendant that the plaintiff can not in the present action recover damages for slander, but we are of the opinion that the averments as to the language alleged to have been used' by the. defendant to the plaintiff in the hearing of the public can well be. treated as matter of inducement, illustrative of the contention that the swearing out of the warrant and the subsequent proceed-, ing were without probable cause
The principal questions in the case, as raised by the demurrers, are, (1) whether the facts alleged show a case of malicious prosecution, and (2) whether it can be determined, from the allegations, that the prosecution is ended. Our code defines a malicious prosecution to be a criminal prosecution "maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted.” ' Civil Code, § 4439. It is undisputed from the record that the defendant swore out a warrant against the plaintiff, charg-.. ing the commission of a misdemeanor, 'and that upon this warrant the plaintiff was arrested. " In pursuance of the provisions of the act creating the city court of Moultrie the warrant was returned to that court’ and the plaintiff executed a bond to the clerk of the court, and the case was entered on the docket. It does not appear whether the solicitor preferred an accusation, but for five terms of the court the defendant in the warrant — the plaintiff in this case —was required, in accordance with the obligation of his bond, to attend the city court of Moultrie, and at length, 'after having several times orally demanded a trial, was informed in open court by the judge and the solicitor that there was nothing against him; and subsequent inquiry disclosed that the judge had formerly made upon his docket an entry that the ease was dismissed. Under the facts which we have already stated, it appears that the jury would be authorized to find that the prosecution was instituted with malice
Before there can be a recovery for damage resulting for malicious prosecution, it must appear that the prosecution has ended. The petition set forth that the case had been dismissed in the city court; and we hold this dismissal to be sufficient evidence of the termination of the prosecution, since prosecutions in that court must be based upon affidavit, and it would require an entirely new affidavit to renew the prosecution. Judgment reversed.