Lowe v. Turner

Citation115 Ga.App. 503,154 S.E.2d 792
Decision Date17 March 1967
Docket NumberNo. 1,No. 42617,42617,1
PartiesHorace N. LOWE v. J. M. TURNER et al
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court

1. Since the plaintiff's arrest was based upon a void warrant and accusation, the petition does not state a cause of action for malicious prosecution.

2. The petition, although failing to state a cause of action under the designated theory of malicious prosecution, contained allegations sufficient to state a cause of action for false imprisonment; therefore, the court erred in sustaining the general demurrer to the petition.

Horace N. Lowe brought an action, denominated as one for malicious prosecution, against Turner Concrete, Inc. and its president, J. M. Turner. The petition alleged substantially as follows: On December 13, 1962, the plaintiff issued a check on the account of H. N. Lowe Construction Co., Inc., of which he was president, payable to and in the amount of his company's indebtedness on open account with the defendants, to whom he mailed the check. The check was dishonored by the payor bank because of insufficient funds. On April 5, 1963, the defendants brought an action on open account against the plaintiff's company in the City Court of Athens, resulting in a default judgment for the present defendants and a nulla bona return on the fi. fa. issued thereon. On November 19, 1963, defendant Turner obtained from a justice of the peace in Elberton a warrant for the plaintiff's arrest for the misdemeanor of cheating and swindling by passing a worthless check. The plaintiff was arrested on January 13, 1964 and made bond to appear at the February term, 1964, of the City Court of Elberton. The plaintiff was forced to incur attorney's fees to defend against the charge, of which he was innocent. On February 8, 1965, the charge against the plaintiff was dismissed by the Solicitor and Judge of the City Court of Elberton. The affidavit filed by defendant Turner was false and malicious.

The plaintiff appeals from the judgment of the superior court sustaining the defendants' general demurrer to the petition.

L. D. Skaggs, Athens, for appellant.

Grant & Matthews, William F. Grant, C. G. Matthews, Jr., John C. Walden, Elberton, for appellees.

FELTON, Chief Judge.

1. 'An arrest based upon a warrant which is void furnishes no basis for action for malicious prosecution.' J. C. Penney Co. v. Green, 108 Ga.App. 155, 157, 132 S.E.2d 83, 85 and cit.; Cary v. Highland Bakery, Inc., 50 Ga.App. 553, 555, 179 S.E. 197. The new and stricter statutes dealing with the form and contents of affidavits and warrants. Ga.L.1962, p. 668 (Code Ann. §§ 27-103.1, 27-104, 27-105), omit the 'substantial compliance' language formerly used and, hence, require compliance of affidavits and warrants with the statutory standard of required information. Lovett v. State, 111 Ga.App. 295, 141 S.E.2d 595. § 27-103 (Ga.L.1865-6, p. 235) requires the statement of the offense, the county in which the same was committed and the time when committed. Code Ann. § 27-103.1 contains the additional requirements of the date and place of occurrence of the offense, against whom such offense was committed, and a statement describing the offense.

The affidavit in the present case, made by J. M. Turner d/b/a Turner Concrete, Inc., stated the offense as 'Passing a worthless check ($1289.50)' and named the county (Elbert) and date (December 13, 1962) of its commission. Neither the affidavit nor the warrant states the time when committed (other than the date), the place of occurrence of the offense (other than the county), against whom the offense was committed (other than showing who made the affidavit) nor a description of the offense, other than 'passing a worthless check ($1289.50).' The accusation describes the charge against the plaintiff thus: 'For the said H. N. Lowe in the said county with force and arms did then and there unlawfully draw and utter a certain draft or check in the amount of $1289.90 (sic) and having drawn said draft or check the defendant did not then and there have in the hands of said bank sufficient funds to pay said draft and did not then and there within 30 days thereafter deposit with said bank sufficient funds to pay said draft or check.' The accusation purports to charge an offense under Code Ann. § 13-9933 (Ga.L.1962, p. 593), but fails to allege two necessary elements of that statute, viz., scienter and intent to defraud, hence was a void accusation. McCain v. Smith, 221 Ga. 353, 144 S.E.2d 522. Furthermore, the accusation is based upon the affidavit of one L. Adger Moore, whereas the warrant was issued on the defendant Turner's affidavit. While it has been held that it is not essential to the validity of the accusation that the warrant be issued on the affidavit on which the accusation is based (Brown v. State, 109 Ga. 570(2), 34 S.E. 1031), the accusation does not even state the date of the...

To continue reading

Request your trial
10 cases
  • Ferrell v. Mikula
    • United States
    • United States Court of Appeals (Georgia)
    • 25 Noviembre 2008
    ...795, 72 S.E. 238 (1911); accord Drug Emporium v. Peaks, 227 Ga.App. 121, 128-129(2)(d), 488 S.E.2d 500 (1997); Lowe v. Turner, 115 Ga.App. 503, 506(2), 154 S.E.2d 792 (1967). The evidence in this case clearly establishes that the Ferrells were detained. Although "`imprisonment' was original......
  • Collins v. Sadlo
    • United States
    • United States Court of Appeals (Georgia)
    • 6 Julio 1983
    ...is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful. [Cits.]" Lowe v. Turner, 115 Ga.App. 503, 506, 154 S.E.2d 792 (1967). It is thus clear that, unlike an action for malicious arrest instituted pursuant to OCGA § 51-7-1 (Code Ann. § 105-1......
  • Mehinovic v. Vuckovic
    • United States
    • U.S. District Court — Northern District of Georgia
    • 29 Abril 2002
    ...51-7-20 (2000). Plaintiffs need not show malice or lack of probable cause to state a claim for false imprisonment. Lowe v. Turner, 115 Ga.App. 503, 154 S.E.2d 792, 795 (1967). A detention need not consist of physical restraint, but may arise out of words, acts, gestures or the like, which i......
  • Reese v. Clayton County
    • United States
    • United States Court of Appeals (Georgia)
    • 4 Diciembre 1987
    ...v. West, 129 Ga. 532(1), 59 S.E. 232 (1907); Courtenay v. Randolph, 125 Ga.App. 581(1), 188 S.E.2d 396 (1972); Lowe v. Turner, 115 Ga.App. 503, 506(2), 154 S.E.2d 792 (1967); Smith v. Embry, 103 Ga.App. 375, 377(2), 119 S.E.2d 45 The only essential elements for false imprisonment are (1) de......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT