Swift v. Witchard

• Decision Date: 30 November 1897
• Parties: SWIFT . v. WITCHARD.
• Court: Georgia Supreme Court

29 S.E. 762

103 Ga. 193

SWIFT .

v.WITCHARD.

Supreme Court of Georgia.

Nov. 30, 1897.

Malicious Prosecution —What Constitutes — Sufficiency of Petition.

1. To authorize a recovery of damages for a malicious prosecution, it must, under the provisions of the Civil Code of this state, appear not only that a criminal prosecution was maliciously instituted, but also that the same was maliciously "carried on"; that is to say, some progress beyond suing out a warrant must have been made, in order to give a right of action to the injured party.

2. Simply making an affidavit before a justice of the peace, charging one with an offense against the criminal laws of this state, when not followed up by an arrest, does not render the prosecution, even if malicious and without probable cause, actionable. Before it would become so, there must at least have been anarrest, and an Inquiry before a committing court.

3. Accordingly, where a petition alleges that the defendant swore out a warrant before a justice of the peace, charging the plaintiff with a criminal offense, which was not followed by having the warrant placed in the hands of an officer to execute, nor by the arrest of the defendant, nor by any further prosecution of the charge, this did not, under our law, constitute a malicious prosecution, from which a right of action could arise.

(Syllabus by the Court.)

Error from superior court, Irwin county; C. C. Smith, Judge.

Action by A. C. Swift against S. M. Witchard. A demurrer to the petition was sustained, and plaintiff brings error. Affirmed.

Cutts & Lawson, for plaintiff in error.

Way & Jay, for defendant in error.

LITTLE, J. The plaintiff in error brought his action against the defendant to recover damages;. alleging in his petition, among others, the following facts, on which he relied for a recovery: On October 20, 1806, the defendant swore out before William B. Moore, notary public, and ex officio justice of the peace, a warrant charging petitioner with the offense of perjury; that he was not guilty of said offense; that the charge was untrue; that there was no probable cause of suspicion to authorize the swearing out of said warrant; that the taking out of same was due solely to the malice of said defendant; and that the prosecution had been abandoned. There were a great number of other matters set out in the petition, — unnecessary, in any aspect of the case, to be either averred or proven; but, taken as a whole, the petition must be treated as an action to recover damages for malicious prosecution. The first ground of the demurrer is that "plaintiff, by the allegations set forth in the petition, states no facts that would entitle him to recover damages from the defendant." This ground of the demurrer we consider to be good. The reason given by the pleader in explanation of the same, "there being no special or actual damages alleged, " need not be considered or passed on, under the view which we take of the case.

1, 2. Treating the petition as properly brought, and as an action to recover damages for a malicious prosecution, we iind that it is based on the fact that the defendant made an affidavit, before an officer authorized to issue a warrant for a violation of the criminal laws, charging the plaintiff with perjury, and that a warrant issued on the affidavit, but was not placed in the hands of an officer for execution, nor was the plaintiff ever arrested under it, nor were any further proceedings had, and that it was subsequently permanently abandoned. The question is, do these facts constitute such a prosecution as would authorize an action, if such acts were done with malice, and without probable cause? We have giv en the common-law authorities which bear on this question a careful examination, for the purpose of properly construing the section of our Code which governs the right of action in cases of this character, and we find much conflict to exist. In 2 Add. Torts, § 856, the rule governing the right of action for a malicious prosecution is laid down in these words: "If a defendant maliciously and without reasonable and probable cause has attended before a magistrate, and made a complaint, and induced the magistrate to Issue a warrant against the plaintiff, the defendant is responsible in damages in an action for a malicious prosecution." It would seem that this authority bears directly on the question in this case, and it would do so were it not for the fact that this author, in defining what is meant by a malicious prosecution, uses these words: "To put the criminal law in force maliciously, and without any reasonable or probable cause, is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action." It would seem to follow logically that, where a malicious prosecution is "to put the criminal law In force maliciously, " an action for damages would lie for maliciously and without probable cause making an affidavit which charged another with a violation of a criminal law. By making this affidavit the...