Clark v. Douglas

• Decision Date: 31 July 1909
• Docket Number: (No. 1,463.)
• Citation: 6 Ga.App. 489,65 S.E. 304
• Parties: CLARK. v. DOUGLAS.
• Court: Georgia Court of Appeals

65 S.E. 304

(6 Ga.App. 489)

CLARK.

v.DOUGLAS.

(No. 1, 463.)

Court of Appeals of Georgia.

July 31, 1909.

Malicious Pbosecution (§ 47^*)—Actions-Petition—Sufficiency.

The plaintiff's petition alleged that he had been arrested at the instance of the defendant on a warrant charging him with the offense of cheating and swindling, and carried before the magistrate who issued the warrant; that he asked a committal trial immediately, but that at the instance of the prosecutor the committal trial was postponed and he was required to give bond for his appearance at a later date; and that before the time set for the committal trial the prosecutor voluntarily dismissed the prosecution and paid all costs. It was further alleged that the prosecution was instituted maliciously and without probable cause, whereby plaintiff had been damaged. Held, it was error for the judge to sustain a general demurrer to the petition.

[Ed. Note.—For other cases, see Malicious Prosecution, Dec. Dig. § 47.*]

(Syllabus by the Court.)

Error from City Court of Douglas; O. T. Roan, Judge.

Action by Wm. Clark against B. W. Douglas. Judgment for defendant, and plaintiff brings error. Reversed.

Rogers & Heath, for plaintiff in error.

C. A. Ward and Lawson Kelley, for defendant in error.

RUSSELL, J. The plaintiff brought an action for malicious prosecution, alleging that at the instance of the defendant he was arrested on a warrant charging him with the offense of cheating and swindling; that he was carried before the magistrate who issued the warrant, and that he asked a committal trial immediately, but that at the instance of the defendant the committal trial was postponed until a later date and the plaintiff forced to give bond to avoid beingput in jail; that before the time set for the committal trial the defendant voluntarily dismissed the prosecution, paid all costs, and abandoned the case. It was further alleged that the prosecution was instituted with malice and without probable cause. The plaintiff laid his damages at $2,500. The trial judge sustained a general demurrer to the plaintiff's petition.

The tort of malicious prosecution is made out when the following elements appear: (1) That the prosecution has terminated in favor of the plaintiff. (2) that it was instituted maliciously; (3) that it was brought without probable cause; and (4) that it has caused the plaintiff damage. Burdick on Torts, 249. The petition in the present case contains all of these allegations, and it was error to...