Courtenay v. Randolph, s. 46604

• Decision Date: 25 February 1972
• Docket Number: 3,2,46677,Nos. 46604,46676 and 46678,Nos. 1,s. 46604,s. 1
• Citation: 188 S.E.2d 396,125 Ga.App. 581
• Parties: . GOLFLAND MOTEL, INC., et al. v. Mrs. Earl RANDOLPH. Mrs. Earl RANDOLPH v. GOLFLAND MOTEL, INC., et al. Court of Appeals of Georgia, Division
• Court: Georgia Court of Appeals

Page 396

188 S.E.2d 396

125 Ga.App. 581

Lin N. COURTENAY et al. v. Mrs. Earl RANDOLPH.

Mrs. Earl RANDOLPH v. Lin N. COURTENAY et al.

GOLFLAND MOTEL, INC., et al. v. Mrs. Earl RANDOLPH.

Mrs. Earl RANDOLPH v. GOLFLAND MOTEL, INC., et al.

Nos. 46604, 46677, 46676 and 46678.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 25, 1972.

Gerstein & Carter, Joe W. Gerstein, Richard F. Livingston, Jr., Chamblee, James H. Weeks, Atlanta, for Lin N. Courtenay and others.

Neely, Freeman & Hawkins, Thomas H. Harper, Jr., Atlanta, for Golfland Motel, Inc., and others.

Holcomb & McDuff, Frank D. Holcomb, Robert McDuff, Marietta, John H. Ramsaur, Decatur, for Mrs. Earl Randolph.

Syllabus Opinion by the Court

PANNELL, Judge.

In these companion cases plaintiff filed two count complaints against the respective defendants. Count 1 alleged malicious prosecution and Count 2 false imprisonment. The trial court denied defendants' motions for summary judgment as to Count 1 and granted their motions as to Count 2. We are treating these rulings in the reverse order.

1. (Count 2). If the plaintiff was arrested under a void warrant the action is for false imprisonment and if the warrant is valid malicious prosecution is the remedy. Smith v. Embry, 103 Ga.App. 375(3), 119 S.E.2d 45; Lowe v. Turner, 115 Ga.App. 503, 154 S.E.2d 792. Two warrants for the arrest of plaintiff were issued for defrauding an innkeeper. The affidavits both fail to state the time when the crime was committed. Plaintiff contends that this defect voids both warrants. She relies upon the cases of Lowe v. Turner, supra, and Lovett v. State, 111 Ga.App. 295, 141 S.E.2d 595. Neither case holds that the failure to state the time of commission of the crime in the affidavit, standing alone, will cause an otherwise sufficient affidavit and warrant to be void. In Turner the affidavit failed to state the time of commission, the place of occurrence and a description of the offense. In Lovett the affidavit and warrant only charged the defendant with the offense of misdemeanor on a named date. Here the affidavits sufficiently charged the dates of commission; the places of occurrence including the county; against whom the offense was committed; and a description of the offense of defrauding an innkeeper which is enough to show a strict compliance with Code §§ 27-103 and 27-103.1. The failure to state the time of commission is a mere technical defect and does not void the warrant. As the warrant is valid, the plaintiff cannot successfully maintain the action for false imprisonment and the grant of the summary judgments as to Count 2 must be affirmed.

2. (Count 1). The only issue presented as to the malicious prosecution count is whether the prior criminal cases terminated in plaintiff's favor. That is an essential element of malicious prosecution. Clark v. Douglas, 6 Ga.App. 489, 65 S.E. 304. The trial court which had jurisdiction over the offenses placed the cases on the court's dead docket. Code § 24-2714(7). Placing a criminal case on the dead docket postpones the prosecution indefinitely 'but (it) may be reinstated any time at the pleasure of the court.' Newman v. State, 121 Ga.App. 692, 694, 175 S.E.2d 144, 146. The provisions of our law in reference to the dead docket (since the Code of 1895, § 797 PC) reads as follows: 'A docket of criminal cases, to be known as the dead docket, to which cases shall be transferred at the discretion of the presiding judge, and which shall only be called at his pleasure. When a case is thus transferred, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaed.' Prior to the Code of 1895 and back to our original Code of 1863 (§ 262(4)), the law in reference to criminal dockets reads as follows: 'A docket in which must be entered all criminal cases which have been on the criminal docket for as much as five years without any existing arrest, and which must be inspected by the Court, at least once every year, that if necessary, any case may be re-transferred to the criminal docket.' Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused's favor. A case is still pending which can be called for trial at the judge's pleasure, or upon which the accused can make a demand for trial. Newman v. State, 121 Ga.App. 692, 175 S.E.2d 144. While this court in Newman v. State, in comparing the dead docket law with nolle prosequi without leave in North Carolina made the statement 'with both, the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court,' no reinstatement is required under the Georgia statute relating to the dead docket. No 'reinstatement' is necessary, other than a possible 'reinstatement' of the cases to the active docket. There is no language whatsoever in the Code section which states that the case can be 'reinstated' at the pleasure of the court, or any other language indicating that a case is terminated in favor of the defendant when it is placed upon the dead docket. Even in our practice where a nolle prosequi is entered, the case is still pending for a period of six months and terminates then because that is what the statute provides. Code § 27-601(4). Since no reinstatement of the case is necessary before it can be called for trial, it must, as a necessity, still be pending in the court. Certainly, where a case needs no reinstatement or rebringing by new accusation or indictment, and can be brought to trial at the pleasure of the judge or upon the demand of the accused as a matter of right (Newman v. State, 121 Ga.App. 692, 175 S.E.2d 144, supra), it cannot be said to have terminated favorably to the accused; nor can it be said the prosecution has been abandoned so long as the case is pending. We find no other evidence of abandonment of the prosecution. The trial judge erred in overruling the defendant's motion for summary judgment as to Count 1 of the petition.

Judgment affirmed in part; reversed in part.

JORDAN and HALL, P. JJ., and EBERHARDT, QUILLIAN and CLARK, JJ., concur.

BELL, C.J., and DEEN and EVANS, JJ., concur in part and dissent in part.

EBERHARDT, Judge (concurring).

We think the majority view is correct, particularly since this type of action is not favored by the courts. 'This action is strictly guarded, and the circumstances under which it may be maintained are accurately stated; it is never encouraged, except in plain cases; were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law and to discharge his duty to society, with the prospect of an annoying suit staring him in the face.' Ventress v. Rosser, 73 Ga. 534, 541. Accord: Henderson v. Francis, 75 Ga. 178, 181(5); Joiner v. Ocean Steamship Co., 86 Ga. 238, 245, 12 S.E. 361. 'The action is not favored by the law, and especially is this true where the suit is based upon a criminal proceeding against the plaintiff, for public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage.' South Georgia Grocery Co. v. Banks, 52 Ga.App. 1, 8, 182 S.E. 61, 65.

With this policy firmly settled in the law there should be no construction of the law or the facts to give rise to an action unless it is clearly and plainly demanded. Consequently, the construction by Judge Pannell of Code § 24-2714(7)), which provides for a 'dead docket' for criminal cases, the transfer of cases thereto and that when this has been done the case 'shall only be called at (the judge's) pleasure,' is in keeping and I think it is correct. Certainly if, as the Code section provides, the judge may call the case for trial at his pleasure it cannot be said that it is at an end. The case is viable-alive, though on the dead docket! Nor, under the fixed policy relative to these cases, can we infer an abandonment from a transfer of a case to the dead docket; if there is an inference it must be...