Page v. Citizens' Banking Co.
| Decision Date | 06 June 1900 |
| Parties | PAGE v. CITIZENS' BANKING CO. et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A partnership is liable as such in an action for malicious prosecution, when the same was instituted in furtherance of the partnership's interests, and by direct authority of its members.
2. A partnership, the individual members thereof, and a person not a member may be joined as defendants in an action for a malicious prosecution, if it was instituted as the result of a confederation and conspiracy among them to begin and carry it on.
3. The petition in such an action may appropriately set forth facts showing that the institution of the prosecution was in furtherance of the partnership's interests, and setting forth the transactions out of which the prosecution arose.
4. It is "carrying on" a prosecution to cause a warrant to be issued, having the defendant therein arrested and his goods seized, having him brought before a committing magistrate, procuring continuance of the preliminary hearing and requiring him to give bond for his appearance before the committing magistrate, notwithstanding the prosecution was finally abandoned in the committing court.
5. Abandoning the prosecution before the committing magistrate and procuring him to grant an order dismissing the warrant and discharging the accused, on the ground that the prosecutor had no evidence whatever to offer against him amounts to a termination of the prosecution, when no further action thereon is taken.
6. A partnership may be sued as such in an action for a malicious arrest, when the process under which the arrest was made was sued out in the interest of the partnership, and under the direction of the persons composing the same.
7. An imprisonment resulting from an arrest under a valid warrant will not give a right of action for false imprisonment.
8. In dealing with demurrers or other objections to pleadings, the judge should first dispose of demurrers to petitions; and where, as a result, a petition is dismissed, it is not proper practice at the same term of the court to deal with demurrers to an answer to such petition.
9. The counts in the petition for malicious prosecution and malicious arrest set forth causes of action, and were not subject to the demurrers filed thereto. The count for false imprisonment did not set forth a cause of action. Direction is given that the case be reinstated as to the two counts first mentioned.
Error from superior court, Dodge county; C. C. Smith, Judge.
Action by J. D. Page against the Citizens' Banking Company and others. Judgment for defendants, and plaintiff brings error. Reversed.
De Lacy & Bishop, for plaintiff in error.
Roberts & Milner and W. M. Clements, for defendants in error.
Page brought suit against Ashburn, Peacock, Edwards, Lietch, Williams, Rogers, and the Citizens' Banking Company of Eastman, which was alleged to be a partnership composed of the five persons first above named. The petition contained three counts,--one for malicious prosecution, one for malicious arrest, and one for false imprisonment. The facts alleged in each of the counts were, in substance, as follows: Rogers was the sheriff of the county, and as such had levied a mortgage execution in favor of the Citizens' Banking Company, against petitioner, upon a certain stock of goods which was in the possession of the sheriff under the levy at the former place of business of petitioner. Lietch and Rogers united in making an affidavit that "thirty-one suits of men's clothing have recently been taken from the storehouse lately occupied by J. D. Page, and held in the custody of J. C. Rogers, sheriff of Dodge county, Georgia, under levy of a mortgage fi. fa., and now occupied by W. H. Clements, and the same has been taken by criminal means and carried away, and that they believe, and have probable cause to believe, and have probable cause to believe, that the said property is now concealed in the dwelling and premises occupied by J. D. Page, located on College street, in the town of Eastman." On this affidavit a warrant was issued, directing that the house and premises of Page be searched, and, if the property described in the affidavit be found therein, he be arrested, and, together with the property so found, brought before some judicial officer, to be dealt with as the law directs. It was distinctly alleged in the petition that when Lietch and Rogers made this affidavit they were acting for themselves, as well as for the Citizens' Banking Company, and with the approval and by the direction of each member of that partnership. The warrant issued on this affidavit was placed in the hands of the town marshal and county bailiff, and the house and premises of petitioner were thoroughly searched. None of the property described in the affidavit was found therein, but the officer seized three pieces of dress flannel and two suits of children's clothes, and arrested petitioner. Subsequent to the arrest, the bailiff, with other persons, returned and made another search of the premises, but found none of the property described in the affidavit. Petitioner was taken before a justice of the peace, when Lietch, Edwards, and Williams, acting for themselves and for the other members of the firm, appeared to prosecute plaintiff, with an attorney who was employed by the Citizens' Banking Company, as a partnership, and each and all of the members of the same. In pursuance of that employment such attorney did represent the prosecution against plaintiff from its inception to its termination. Petitioner asked that the be released from custody on the ground that the affidavit upon which the warrant was issued was defective and void, and failed to charge any offense against him, and that for that reason his arrest and detention were unlawful. Lietch, Edwards, and Williams objected to the release of petitioner, and the magistrate refused to order his discharge. He then asked for an immediate investigation or preliminary trial, but the parties just referred to objected to this, and upon their application the hearing was continued to the next day. To avoid being placed in jail, petitioner offered to give a bond for his appearance; but the magistrate held that a bond must be given to appear and answer for the offense or larceny, and petitioner gave the bond to appear for a preliminary hearing on the next day for the offense of larceny. At the time fixed for the preliminary trial, Rogers, Lietch, Edwards, and Williams, acting for themselves and with the approval of Ashburn and Peacock, the other members of the partnership, again appeared with their attorney before the magistrate for the purpose of prosecuting petitioner; and on their motion the case was again continued until the following day, over the objection of petitioner, who was present and demanding a hearing. At the time fixed in this last order of postponement, petitioner appeared with his counsel before the magistrate, and thereupon the prosecution, by their attorney, asked leave of the court to withdraw the warrant, and to restore to petitioner the articles which had been seized by the officer who searched his house; the attorney representing the prosecution stating that it was impossible to make out a case. An order was then granted discharging petitioner from custody, and restoring to him the articles which had been seized. It was distinctly alleged that while Rogers and Lietch, the persons upon whose affidavit the warrant was issued, were the nominal prosecutors of petitioner, Ashburn, Edwards, Williams, and Peacock, and the Citizens' Banking Company, as a partnership, were all jointly and severally the prosecutors in the case. Petitioner alleges that he was innocent of any offense, and that he did not take and carry away any of the articles named in the affidavit, nor were any of them concealed in his dwelling or about his premises, and that the prosecutors had no probable cause whatever to believe that the same were so concealed; that the articles seized by the officer constituted no part of the property mentioned in the affidavit; but were the property of petitioner and his wife and children, and had never been in the possession or custody of the arresting officers for several hours, and was in their constructive custody for 43 hours, before he was released. It is alleged that the prosecution was maliciously instituted and carried on without probable cause; the prosecutors having no ground whatever for the proceeding, other than their desire to injure petitioner. As matter of aggravation and as evidence of malice, it is alleged that the defendants circulated disparaging and damaging reports about petitioner, charging that large quantities of goods stolen from the custody of the sheriff had been found by the officers in the house of petitioner, that he had a secret key to the store in which such goods were located, and that he had taken such goods. To this petition the defendants filed demurrers, both general and special. The court sustained the demurrers and dismissed the petition, and this ruling is assigned as error. The plaintiff, during the progress of the hearing of the demurrers, offered an amendment to his petition, which merely set forth with greater particularity than the original petition the facts showing the connection of the Citizens' Banking Company with the mortgage execution which had been levied upon the property of petitioner, and prayed that, if it should be held that the suit could no be maintained against the Citizens' Banking Company as a partnership, the case might be held in court as a suit against Rogers and the individual members of that partnership. The court refused to allow this amendment, and this ruling is also assigned as error.
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