Abernathy v. Dover

Court of Appeals of Georgia

Abernathy v. Dover

228 S.E.2d 359, 139 Ga. App. 323, 1976 Ga. App. LEXIS 1787

CourtCourt of Appeals of Georgia

DecidedJuly 15, 1976

Docket52462

StatusPublished

Cited by9 cases

This text of 228 S.E.2d 359 (Abernathy v. Dover) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abernathy v. Dover, 228 S.E.2d 359, 139 Ga. App. 323, 1976 Ga. App. LEXIS 1787 (Ga. Ct. App. 1976).

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Opinion

Bell, Chief Judge.

This is a malicious prosecution suit in which the defendants’ motion for summary judgment was granted. The plaintiff appeals. Held:

The issue in this type of action is the lack of probable cause on the part of the prosecution. Morgan v. Mize, 118 Ga. App. 534 (164 SE2d 565). Ordinarily the existence of probable cause is a jury question. Code § 105-802. But, where the material facts are not in dispute or only one inference can be drawn, the question becomes one of law. Johns v. Gibson, 60 Ga. App. 585 (4 SE2d 480). An employee of the defendants, operators of a grocery store, cashed a check made payable to Irene Abernathy for a person holding herself out as Abernathy and who established her purported identity to the employee by means of a North Carolina driver’s license. The check was returned by the drawee bank unpaid because of the nonexistence of an account in the name of the drawer. One of the defendants swore out a warrant for the arrest of plaintiff. This criminal case was later dismissed by the superior court because of a lack of evidence. Applying the above rules to these undisputed facts, we affirm the grant of judgment to defendants as the evidence and inferences to be drawn demand the conclusion that defendants had probable cause to believe that plaintiff had committed forgery in the first degree.

Judgment affirmed.

Clark and Stolz, JJ., concur. *324 William, G. Hasty, Jr., Thomas A. Roach, for appellant. Smith, Shaw, Maddox, Davidson & Graham, William E. Davidson, Jr., for appellee.

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Bell, Chief Judge.

This is a malicious prosecution suit in which the defendants’ motion for summary judgment was granted. The plaintiff appeals. Held:

The issue in this type of action is the lack of probable cause on the part of the prosecution. Morgan v. Mize, 118 Ga. App. 534 (164 SE2d 565). Ordinarily the existence of probable cause is a jury question. Code § 105-802. But, where the material facts are not in dispute or only one inference can be drawn, the question becomes one of law. Johns v. Gibson, 60 Ga. App. 585 (4 SE2d 480). An employee of the defendants, operators of a grocery store, cashed a check made payable to Irene Abernathy for a person holding herself out as Abernathy and who established her purported identity to the employee by means of a North Carolina driver’s license. The check was returned by the drawee bank unpaid because of the nonexistence of an account in the name of the drawer. One of the defendants swore out a warrant for the arrest of plaintiff. This criminal case was later dismissed by the superior court because of a lack of evidence. Applying the above rules to these undisputed facts, we affirm the grant of judgment to defendants as the evidence and inferences to be drawn demand the conclusion that defendants had probable cause to believe that plaintiff had committed forgery in the first degree.

Judgment affirmed.

Clark and Stolz, JJ., concur. *324 William, G. Hasty, Jr., Thomas A. Roach, for appellant. Smith, Shaw, Maddox, Davidson & Graham, William E. Davidson, Jr., for appellee.

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228 S.E.2d 359, 139 Ga. App. 323, 1976 Ga. App. LEXIS 1787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abernathy-v-dover-gactapp-1976.

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