Stephens v. Big Apple Supermarkets of Rome, Inc., s. 48962

• Decision Date: 08 February 1974
• Docket Number: 48963,No. 1,Nos. 48962,s. 48962,1
• Citation: 130 Ga.App. 841,204 S.E.2d 805
• Parties: Ryburn STEPHENS v. BIG APPLE SUPERMARKETS OF ROME, INC., et al. HOOD v. BIG APPLE SUPERMARKETS OF ROME, INC., et al
• Court: Georgia Court of Appeals

Page 805

204 S.E.2d 805

130 Ga.App. 841

Ryburn STEPHENS v. BIG APPLE SUPERMARKETS OF ROME, INC., et al.

HOOD v. BIG APPLE SUPERMARKETS OF ROME, INC., et al.

Nos. 48962, 48963.

Court of Appeals of Georgia, Division No. 1.

Feb. 8, 1974.

Autrey, Ware & Otonicar, Jerome C. Ware, Marietta, for appellants.

Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., F. Clay Bush, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

These appeals are by two plaintiffs from summary judgments granted defendant corporations on suits alleging both false imprisonment and malicious arrest.

The briefs submitted by both parties in the two appeals detail facts contained in depositions which were referred to as part of the summary judgment motions. Although the appeal record in each case contains the trial clerk's certificate that there has been transmitted 'a true and correct copy of those portions of the record of file and required by the Notice of Appeal' these depositions are not before us. Our record in each case is identical, containing only the complaint, answer, and summary judgment motion with an amendment to the latter being an affidavit of F. Larry Salmon, District Attorney for the Rome Judicial Circuit. The pertinent portions of this affidavit recite that 'the plaintiffs in each of these respective cases are defendants in regard to misdemeanor charges arising out of certain bad check violations . . . (That) in connection with these two pending cases, arising out of warrants taken out by Mr. Joe Williamon, our investigation became dormant, and therefore, these cases have not been heard or terminated . . . (and) it is the intention of the District Attorney, Rome Judicial Circuit, to revive thse cases so that there can be a proper disposition and termination of the charges, which has not yet occurred.'

1. 'This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel. (Cits.)' Jenkins v. Board of Zoning, etc., Columbus, 122 Ga.App. 412, 413(2), 177 S.E.2d 204, 206. Accordingly, we cannot consider the facts referred to in the briefs, these facts being taken from depositions which are not made a part of the appeal record.

2. Hon. Andrew J. Cobb, ¹ one of the greats in Georgia's jurisprudential history, wrote the definitive law on false imprisonment actions in Page v. Citizens' Banking Co., 111 Ga. 73, 86, 36 S.E. 418, 423. There he stated: 'It is a rule of law in this connection, which admits of no exception, that, where there is an arrest on a valid warrant,-one neither void nor voidable,-it is not a false imprisonment, and no liability is incurred by any person whomsoever, whether immediately or only remotely connected therewith. And the rule applies, no matter how corrupt or unfounded or mistaken the motives which induced the issuance or execution of the warrant may have been.'

As the district attorney's affidavit demonstrates that the arrests complained of were founded upon warrants, and as there is no allegation that the warrants are not valid, there was no error in granting defendants' motion for summary judgment on the false imprisonment averments. See Sanders v. Jacobs, 119 Ga.App. 101, 102, 166 S.E.2d 433, 434...