Earlywine v. Strickland , 145 Ga. App. 626 ( 1978 )

145 Ga. App. 626 (1978) 244 S.E.2d 118

EARLYWINE
v.
STRICKLAND.

55538.

Court of Appeals of Georgia.

Submitted March 7, 1978. Decided April 6, 1978.

David S. Marotte, for appellant.

Irvan A. Pearlberg, for appellee.

WEBB, Judge.

An action for malicious prosecution instituted within six months from the entry of nolle prosequi of a criminal prosecution, upon which the action was predicated, is premature and dismissal was proper.

One of the five essential elements for a cause of action for malicious prosecution is "that the criminal prosecution was finally terminated legally in favor of the plaintiff." Powell v. Cohen, 116 Ga. App. 48, 50 (156 SE2d 495) (1967). "The prosecution must be ended before the right of action accrues." Code Ann. § 105-806.

Under Code Ann. § 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... Its effect therefore is not necessarily the ending of the prosecution, but the continuance of the same. Not until the expiration of the six-months period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to an abandonment, is the prosecution at an end." Price v. Cobb, 60 Ga. App. 69, 61-62 (3 SE2d 131) (1939); Code Ann. § 27-601. Bailey v. General Apt. Co., 139 Ga. App. 713 (229 SE2d 493) (1976), is not to the contrary.

Judgment affirmed. Quillian, P. J., and McMurray, J., concur.