60 Ga. App. 59 | Ga. Ct. App. | 1939
A. L. Cobb brought suit in the city court of Savannah against T. M. Price, a resident of Chatham County, and C. M. Daughtry, Tom D. Daughtry, Mrs. C. J. Oliver, and Mrs. Ola Brunson, residents of Screven County and children of 0. L. Daughtry, deceased. Clarence J. Oliver and B. B. Barber of Screven County, and B. E. Clayton of Jenkins County were also named as defendants. The action was for malicious prosecution, and the petition alleged that the other named defendants employed defendant Price, a detective, presumably to ferret out the murder of their father and relative, C. L. Daughtry, but that the real purpose of the employment was to divert suspicion as to the murder from C.
It may be well to state that actions for malicious arrest and prosecution are not favored by the courts. The action is strictly guarded, and the circumstances under which it may be maintained are accurately stated. Hearn v. Batchelor, 47 Ga. App. 213, 215 (170 S. E. 203); Hartshorn v. Smith, 104 Ga. 235 (30 S. E. 666); Hicks v. Brantley, 102 Ga. 264 (29 S. E. 459); Cook v. Walker, 30 Ga. 519. The Code, § 105-806, provides: “The prosecution must be ended before the right of action accrues.” This provision is a sine qua non to the maintenance of the action. One of the grounds of demurrer raises this question, and contends that an allegation that an indictment has been obtained and then has had entered thereon a nolle prosequi is not alone sufficient to show that
In Smith v. Craig, 59 Ga. 882, it was decided that where a defendant had given bond and had then been tried, convicted, and sentenced, and had then moved for a new trial, and upon appeal of his case to the Supreme Court had given a new bond to appear and abide the final sentence or judgment of the court, and upon appeal his conviction was affirmed, there could be no forfeiture of the original bond. The last bond given transferred the custody of the prisoner from the first bond to the bail on the supersedeas bond. This fact, however, did not mean that the prosecution was at an end. Neither is Clark v. Black, 136 Ga. 812 (72 S. E. 251), authority for a contrary holding. Under the Code, § 27-1801, a nolle prosequi may be entered by the solicitor with the consent of the court. In such a case a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered, Neither the quashing of the indictment
In so holding we recognize that we are running contrary to the
Judgment reversed.