Gordon v. West
| Decision Date | 15 November 1907 |
| Citation | 59 S.E. 232,129 Ga. 532 |
| Parties | GORDON v. WEST et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An arrest and imprisonment under valid process furnish no cause of action for false imprisonment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 23, False Imprisonment, § 8.]
Where defendant, in an action of trover, is arrested and imprisoned under bail process ancillary thereto, and is discharged under the provisions of Civ. Code 1895, § 4608, his right of action, if any he has, either for false imprisonment, or for the malicious abuse of process, or for the malicious use of process, accrues, not upon the termination of the action in trover, but at the time of his discharge from imprisonment and if not brought within two years thereafter is barred by the statute of limitations.
[Ed Note.-For cases in point, see Cent. Dig. vol. 23, False Imprisonment, § 84.]
The petition was properly dismissed upon demurrer.
Error from Superior Court, Floyd County; Moses Wright, Judge.
Action by Andrew Gordon against William J. West. Judgment for defendant, and plaintiff brings error. Pending the case in the Supreme Court, defendant in error died, and the executors of his will, A. S. West and another, were made parties defendant in error. Affirmed.
Henry Walker, for plaintiff in error.
M. B Eubanks, for defendant in error.
On April 24, 1906, Andrew Gordon filed a petition against William J. West, the substance whereof, so far as material, briefly stated, was: On January 23, 1903, defendant brought against plaintiff an action of bail trover, and on same date the Southern Banking & Trust Company and M. N. West & Company, each, instituted a similar action against plaintiff; the three suits being for personalty of the same character. The bail process in each case was founded upon an affidavit therefor made by defendant. On January 28, 1903, plaintiff was arrested and lodged in jail under such bail proceedings. On the day of his arrest he filed petitions, in accordance with the statute, for his discharge, but a hearing thereon was not had, by reason of postponements at the instance of counsel for defendant in the present case, until February 4, 1903; plaintiff having been confined in jail in the meantime, when the court granted, in each case, an order as follows: "Upon the call of this case for a hearing of the motion to discharge from custody, without trying same, and by consent of plaintiff, the defendant is discharged from jail on his own recognizance, conditioned as required by statute." On April 28, 1904, the three actions of trover were tried, and a money verdict was rendered in each in favor of the plaintiff therein. In the petition in the present case, damages were laid for lost time, the disgrace and humiliation and ruined clothing, all caused by plaintiff's imprisonment, and for attorney's fees. The petition was demurred to generally and specially. The court granted a general order sustaining the demurrers and dismissing the petition, to which ruling plaintiff excepted. Pending the case in this court, the defendant in error died, and the executors of his will, A. S. West and E. A. Heard, were duly made parties defendant in error. On account of the very loose and general allegations of the petition, it is rather difficult to decide whether the cause of action intended to be set forth therein was false imprisonment, malicious abuse of process, or malicious use of process; or whether the purpose was to make the petition cover all three causes of action. We will not deal with the special demurrers, for the petition was properly dismissed upon general demurrer, even if it properly set forth any one or more of the above-stated causes of action.
1. In the absence of anything appearing to the contrary in the petition, it must be assumed that the bail proceedings under which plaintiff was arrested and imprisoned were regularly sued out and valid, and that therefore the arrest and imprisonment of plaintiff were by lawful process. This being true, plaintiff had no right of action for false imprisonment. Joiner v. Ocean Steamship Co., 86 Ga. 238, 12 S.E. 361; Page v. Citizens' Banking Co., 111 Ga. 73 (7), 36 S.E. 418, 51 L.R.A. 463, 78 Am.St.Rep. 144.
2. If the present suit were based upon any one or more of the causes of action above named, it is apparent from the petition that the action was barred by the statute of limitations, as "actions for injuries done to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year." Civ. Code 1895, § 3900. It has been held that the words "injuries done to the person," as here used, are not restricted to mere bodily or physical injuries, but comprehend all injuries to the person, including malicious arrest, false imprisonment, injuries to health, etc. Johnson v. Bradstreet, 87 Ga. 79, 13 S.E. 250; Hutcherson v. Durden, 113 Ga. 987, 39 S.E. 495, 54 L.R.A. 811. In Montague v. Cummings, 119 Ga. 139, 45 S.E. 979, it was held that an action for the malicious abuse of process must be brought within two years after the right of action accrues, and it is a well-recognized rule that to maintain such an action it is necessary that the suit in which such process issued has been terminated. Mullins v. Matthews, 122 Ga. 286, 50 S.E. 101; 13 Enc. Pl. & Prac. 452; 19 Am. & Eng. Enc. L. 632. A different rule applies, however, to an action for the malicious use, without probable cause, of civil process, for it is, in general, essential to the maintenance of such an action that a legal termination of the action complained of should be shown, and that such termination was in favor of the plaintiff in the action for the malicious use of process. Mullins v. Matthews, 122 Ga. 286, 50 S.E. 101; 19 Am. & Eng. Enc. L. 680; 13 Enc. Pl. & Pr. 444. Where, however, the proceeding complained of was merely ancillary to an action, such as an arrest of the body on civil process, it is not necessary to show that the action itself has been ended, but only that the auxiliary proceeding has been terminated in favor of the plaintiff...
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