Primas v. Saulsberry, 58653
| Decision Date | 26 October 1979 |
| Docket Number | No. 58653,58653 |
| Citation | 152 Ga.App. 88,262 S.E.2d 251 |
| Parties | PRIMAS v. SAULSBERRY. |
| Court | Georgia Court of Appeals |
Charles E. Moore, Atlanta, for appellant.
Robert H. Herndon, Milledgeville, for appellee.
This is an action for damages for false imprisonment and malicious prosecution arising out of the plaintiff's arrest on a warrant taken out by the defendant. The plaintiff alleged in his complaint that the warrant had been dismissed for lack of evidence and that the prosecution had thereby terminated in his favor. The defendant filed what amounted to a motion to dismiss the complaint and at the hearing thereon introduced a certified copy of a pending indictment charging the plaintiff with the same crime alleged in the arrest warrant. Based on this evidence, the trial court dismissed the complaint for failure to state a claim upon which relief could be granted. The plaintiff filed this appeal. Held :
1. The false imprisonment count was properly dismissed for failure to state a claim. "An imprisonment resulting from an arrest under a valid warrant will not give a right of action for false imprisonment." Page v. Citizens Banking Co., 111 Ga. 73(7), 36 S.E. 418 (1900).
2. The dismissal of the malicious prosecution count was also proper in view of the undisputed evidence of the pending grand jury indictment. Earlywine v. Strickland, 145 Ga.App. 626, 244 S.E.2d 118 (1978). The trial court's order, however, purports to be not only a dismissal but also a grant of summary judgment to the defendant. To the extent that the order is a grant of summary judgment, it is clearly unauthorized, since the defense that the prosecution has not terminated is one in abatement. In other words, the prosecution may yet terminate in the plaintiff's favor, and he may yet have a cause of action. C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149...
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Fleming v. Caras
...C.W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149 Ga.App. 354, 357, 254 S.E.2d 426 (1979)." Primas v. Saulsberry, 152 Ga.App. 88(2), 262 S.E.2d 251 (1979). 2. The trial court's grant of appellees' motions to dismiss pursuant to OCGA § 9-11-17(a) is enumerated as error by ......
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Bogart v. Wis. Inst. for Torah Study
...of pursuant to [a] motion to dismiss' ” rather than a defendant's motion for summary judgment. Id., quoting Primas v. Saulsberry, 152 Ga.App. 88(2), 262 S.E.2d 251 (1979). Although “[t]he defendant bringing a motion in abatement has the burden of proving the facts necessary to support a jud......
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Vadner v. Dickerson, A94A0200
...not terminated is one in abatement since the prosecution may subsequently terminate, in favor of the accused. Primas v. Saulsberry, 152 Ga.App. 88, 89, 262 S.E.2d 251 (1979). Moreover, a malicious prosecution action brought prior to final termination of the underlying criminal offense remai......
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Smith v. Holeman
...merits of a claim and cannot be granted on matters in abatement, which are properly disposed of by motion to dismiss. Primas v. Saulsberry, 152 Ga.App. 88, 262 S.E.2d 251; Bennett v. Fine Jewelers, etc., 194 Ga.App. 377, 379, 390 S.E.2d 625. So, wherever the trial court granted summary judg......