Massachusetts Cotton Mills v. Hawkins

Jenkins, P. J.

1. Under the answers returned by the Supreme Court to the questions certified to it in this case (164 Ga. 594, 139 S. E. 52), the petition of the plaintiff, as amended, failed to state a cause of action against the defendants Massachusetts Cotton Mills and II. P. Moikleham, and the court erred in overruling the general demurrers interposed by those defendants.

2. The original petition set forth a cause of action as against the defendant Donehoo. This is true whether or not the warrant which he was attempting to execute was valid or invalid, and whether he knew .or did not know of its invalidity. The gist of the action is not an illegal arrest, but is the alleged tortious conduct of the officer in attempting to effect an arrest. Since, however, it is not alleged that the arresting officer knew of the alleged invalidity of the warrant, the facts set forth respecting its invalidity could have no bearing upon the question of his liability or the extent of his liability. Accordingly, the special demurrer interposed on his behalf to the amendment setting up the invalidity of the warrant, but not alleging that the defendant had knowledge of such fact, should have been sustained.

Judgment affirmed in part and reversed in part.

Stephens and Beil, JJ., concur.