McCord v. Jones
Decision Date | 17 November 1983 |
Docket Number | No. 67249,67249 |
Citation | 311 S.E.2d 209,168 Ga.App. 891 |
Parties | McCORD v. JONES. |
Court | Georgia Court of Appeals |
Alden W. Snead, Lawrenceville, for appellant.
Walter M. Britt, Buford, for appellee.
On September 12, 1982, the appellee, Jack Jones, swore to an affidavit charging the appellant, Janie Lou McCord, with robbery by snatching $10,000 from his shirt pocket and replacing it with a deck of cards after drugging him while at a party. On September 20, 1982, pursuant to a warrant issued on that affidavit, the appellant was arrested. On December 8, 1982, the district attorney decided not to seek an indictment and requested that the clerk of the superior court place the warrant on the "dead docket," on the basis that there was insufficient evidence on which to prosecute the matter.
On April 14, 1983, McCord commenced this action against Jones, sounding in either malicious prosecution or malicious arrest. Jones subsequently moved for summary judgment, contending that placement of the warrant on the dead docket did not constitute a termination of the prior proceeding in the plaintiff's favor. The trial court granted summary judgment for Jones on that basis, emphasizing that its order only was a determination that McCord's asserted cause of action was premature, and McCord appeals.
HELD:
" Smith v. Embry, 103 Ga.App. 375, 378-379, 119 S.E.2d 45 (1961). Accord, Swift v. Witchard, 103 Ga. 193, 29 S.E. 762 (1897).
In the instant case, we are inclined to agree with the appellant's present identification of the alleged tort as malicious arrest, since the district attorney sought no indictment and no prosecution has been carried on, but that classification alone does not avail her. Malicious prosecution and malicious arrest differ only in that malicious prosecution contains the additional element of showing that a prosecution was carried on. OCGA §§ 51-7-1 (Code Ann. § 105-1001) and 51-7-40 (Code Ann. § 105-801); Barnes v. Gossett Oil Co., 56 Ga.App. 220, 192 S.E. 254, later appeal 58 Ga.App. 102, 197 S.E. 902 (1937). To recover in tort for either malicious prosecution or malicious arrest, the appellant had the burden of showing that the prior criminal proceeding, whatever its extent, had terminated in her favor. Courtenay v. Randolph, 125 Ga.App. 581, 188 S.E.2d 396 (1972); Stephens v. Big Apple Supermarkets, 130 Ga.App. 841, 204 S.E.2d 805 (1974); Waters v. Winn, 142 Ga 138, 82 S.E. 537 (1914). " " Stephens v. Big Apple Supermarkets, supra 130 Ga.App. at 843, 204 S.E.2d 805.
In Courtenay v. Randolph, supra 125 Ga.App. at 583, 188 S.E.2d 396, where an indictment had been obtained and placed on the dead docket, this court held that such See also OCGA § 15-6-61 and Newman v. State, 121 Ga.App. 692, 175 S.E.2d 144 (1972). In this case, notwithstanding the possible inappropriateness of placing a warrant (rather than an actual indictment) on the dead docket, we find a similar lack of finality or termination of the prior criminal proceeding. Certainly, nothing prevents the district attorney from subsequently seeking an indictment and proceeding with a prosecution; likewise, nothing prevents the appellant from formally moving for dismissal of the charges. The present disposition simply does not constitute an abandonment and/or termination of the proceeding, absent a subsequent formal entry of...
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