35 Ga. App. 49 | Ga. Ct. App. | 1926
(After stating the foregoing facts.) 1. “The restrictions under which actions for malicious prosecution are placed, and the guarded conditions authorizing them, clearly show that they are not highly favored or much encouraged, and this is because of their tendency to promote litigation and engender strife, as well as to deter persons from coming forward to vindicate the public justice and to insist upon their private rights in the only way that the law allows.” Wilcox v. McKenzie, 75 Ga. 73; Henderson v. Francis, 75 Ga. 178.
2. The plaintiff’s case in an action for malicious prosecution is made out when the following elements appear: (1) that the prosecution, has terminated in his favor; (2) that the prosecution was instituted maliciously and (3) without probable cause, and (4) that it has caused the plaintiff damage. Clark v. Douglas, 6 Ga. App. 489, 490 (65 S. E. 304).
3. There could be no recovery under the petition, since it failed to allege that the prosecution referred to had terminated in favor of the defendant therein. While the procuring from the committing court of an order discharging the defendant in a warrant amounts to a termination of the prosecution when no further action is taken (Page v. Citizens Banking Co., 111 Ga. 73, 36 S. E. 418, 51 L. R. A. 463, 78 Am. St. R. 144), the mere allegation of such discharge, without at least showing in general terms that the prosecution has been terminated, does not meet the requirements of the rule stated. Civil Code (1910), § 4446; Tyler v. Upchurch, 31 Ga. App. 599 (121 S. E. 521).
Judgment reversed.
