Reese v. Clayton County

Deen, Presiding Judge,

concurring specially.

The anomaly in this case is that under Smith v. Embry, 103 Ga. App. 375 (119 SE2d 45) (1961), both the majority and dissenting opinions could be correct. In Smith v. Embry at 377, this court stated that “[i]f the plaintiff was arrested and prosecuted under a valid warrant, the action is malicious prosecution; if wrongfully under a void warrant or no warrant the action is false imprisonment . . . Where the warrant is void, malicious prosecution will not lie.” If, as this court further stated in Smith v. Embry at 378, malicious prosecution and malicious arrest are identical except that malicious prosecution contains the additional element of showing that a prosecution was carried on, it logically follows that malicious arrest similarly will not lie where the warrant is void. Under that rationale, the majority opinion is correct.

Nevertheless, in Smith v. Embry at 378 this court also noted that “[m]alicious arrest or false arrest may be made by virtue either of a valid warrant maliciously and without probable cause ... or unlawfully under a void warrant or without a warrant (Standard Surety &c. Co. v. Johnson, 74 Ga. App. 823, 825 (41 S.E.2d 576).” Taking that language at face value, the dissenting opinion is correct.

That language, however, should not be afforded such value, because it is dictum and because it misrelies upon Standard Surety &c. Co. v. Johnson, wherein this court declined to determine “whether the [warrantless] arrest and imprisonment were separate torts that could be sued for in two counts or were one tort only for which an action for false imprisonment would lie,” id. at 825, because the issue had not been raised in the trial court. In short, that case does not actually support the proposition that false arrest may occur under a void warrant or without a warrant. Additionally, it appears that Blocker v. Clark, 126 Ga. 484 (54 SE 1022) (1906), does not really support the dissent’s position, since that case involves an action for false imprisonment.

I favor the logic and consistency of the rule followed in the majority opinion.