Floyd County Dairies v. Brooks , 61 Ga. App. 239 ( 1939 )

Both counts of the petition were subject to general demurrer. The court erred in ruling otherwise.

DECIDED DECEMBER 5, 1939. Reuben Brooks brought suit against the defendants for the recovery of damages. The petition contained two counts. Count 1, properly construed, alleged an action for malicious arrest; and count 2 was based upon a malicious use of legal process. General demurrers were interposed to both counts and were overruled, and to that judgment exception was taken.

It is well-settled law that an action either for malicious arrest or for malicious prosecution is subject to general demurrer if the petition fails to allege or to show that the prosecution terminated in the plaintiff's favor. Grist v.White, 14 Ga. App. 147 (80 S.E. 519); Waters v. Winn,142 Ga. 138 (82 S.E. 537, L.R.A. 1915A, 601, Ann. Cas. 1915D, 1248). Count 1 of the instant petition alleges that on October 8, 1938, the plaintiff was arrested on a warrant, sworn out by defendant J. R. Newberry, charging him with the offense of larceny after trust; that on that date he was put in jail where he remained until October 10, 1938, when he was discharged from said jail, Newberry having withdrawn said warrant, the order thereon being as follows: "The within warrant withdrawn and cost paid Oct. 10, 1938. J. R. Newberry." The count alleges further that the withdrawal of the warrant and his discharge from jail were "a termination of said proceeding against him." A copy of Newberry's withdrawal of the warrant, as above quoted, was attached as an exhibit to the ground. It will be observed that the count does not allege that the prosecution terminated in favor of the plaintiff, and noamendment to the count was filed. And the question is, did the count show, in the absence of such allegation, that the prosecution had ended in the plaintiff's favor? In Grist v.White, supra, on page 149, this court said: "While, under the Code, an arrest under process of law will give rise to an action for damages, if the arrest be made with malice and without probable cause, still there must have been a judicialascertainment of the fact that the arrest was unlawful, evidence by an order dismissing the warrant or vacating the process under which the arrest was made." (Italics ours.) Evidently the court meant that the fact that the arrest was unlawful must be evidenced by an order from some judicial officer who had authority to ascertain such fact. Count 1 of the instant petition is therefore subject to general demurrer because it fails to allege or to show that the prosecution had ended in plaintiff's favor, the mere withdrawal of the warrant by the prosecutor not being a judicial ascertainment that the plaintiff's arrest was unlawful. See also Smith v. Otwell, 51 Ga. App. 741 (1, 2) (181 S.E. 493); Sykes v. South Side Atlanta Bank, 53 Ga. App. 450 (1) (186 S.E. 464); Price v. Cobb, 60 Ga. App. 59 (3 S.E.2d 131).

Count 2 of the petition is expressly based on "the malicious use of legal process," but the allegations of the count show that the legal process in question was not civil, but was criminal process. The count therefore set out no cause of action, and should have been dismissed on general demurrer. "An action will not lie for the malicious abuse or the malicious use of criminal process, such forms of action being applicable only to civil process. Where a criminal process, valid on its face, has been maliciously sued out without probable cause, an action for malicious arrest or malicious prosecution is the only remedy." Grist v. White, supra, headnote 2; McElreath v. Gross, 23 Ga. App. 287 (1, 2) (98 S.E. 190); Williams v. Adelman, 41 Ga. App. 424,427 (153 S.E. 224).

Judgment reversed. MacIntyre, J., concurs. Guerry, J., dissents.